UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/forensicoratorymOOrobiiala 


FORENSIC  ORATORY 


MANUAL    FOR   ADVOCATES 


BY 
WILLIAM    C.  ROBINSON,  LL.D. 

PROFESSOR    OF   LAW   IN    YALE    UNIVERSITY,    AUTHOR    OF     "ELEMENTARY 
LAW,"   "THE   LAW   OF    PATENTS    FOR    USEFUL   INVENTIONS,"    ETC. 


BOSTON 

LITTLE,   BROWN,   AND    COMPANY 
1893 


Copyright,  189S, 
By  William  C.  Robinson. 

3332-13 


University  Press  : 
John  Wilson  and  Son,  Cambridge. 


t> 


X) 


3|n  S^emoriam 

A.  E.  R. 


THE    LAST    OF    WHOSE    LIFE-LONG    LABORS 

WITH    AND    FOR    THE    AUTHOR 

THIS   VOLUME   CONTAINS. 


PREFACE. 


I  HAVE  written  this  book  in  order  to  assist  law 
students  and  young  lawyers  in  preparing  them- 
selves to  discharge  in  a  proper  manner  their  duties 
as  advocates.  For  more  than  forty  years  I  have 
been  a  frequenter  of  court-rooms,  and  have  studied 
the  modes  in  which  the  trials  of  causes  are 
conducted  from  the  various  points  of  view  of  a 
spectator,  a  court  officer,  a  participating  counsel, 
and  a  judge.  The  conviction  was  long  since  forced 
upon  my  mind  that  the  enormous  waste  of  time  and 
energy  involved  in  these  proceedings  is  due  to  a 
want  of  method  in  preparing  and  presenting  causes, 
whereby  the  conflicts  of  the  forum,  which  should 
consist  in  the  concentration  of  well  ordered  forces 
on  the  exact  points  of  attack  and  defence,  degen- 
erate into  a  guerilla  warfare  of  indefinite  duration, 
characterized  by  irregular  and  often  fruitless  sallies, 
surprises,  and  retreats.  Acting  upon  this  conviction, 
and  seeking  for  the  method  in  which  a  legal  contest 


VI  PREFACE. 

ought  to  be  conducted,  I  was  led  to  compare  the 
modes  of  operation,  adopted  by  advocates  who  had 
become  noted  for  the  celerity  and  certainty  with 
which  they  won  their  cases,  with  the  method 
and  the  rules  prescribed  by  writers  on  the  Art 
of  Forensic  Oratory,  especially  by  Cicero  and 
Ouintilian,  and  became  satisfied  that,  whether  con- 
sciously to  themselves  or  not,  these  advocates  pur- 
sued that  method  and  obeyed  those  rules.  If  this 
be  true,  nothing  is  more  desirable  than  that  young 
advocates  should  be  well  trained  in  the  principles 
and  practice  of  this  art,  and  for  that  purpose  I 
have  brought  together  in  this  volume  the  substance 
of  whatever  I  have  found  already  written  on  the 
subject,  and  of  such  additional  conclusions  as  I  have 
derived  from  personal  observation  and  experience. 
That  it  may  help  to  serve  this  purpose,  and  also 
meet  with  some  approval  from  advocates  who  are 
qualified  to  judge  of  its  merits  and  defects,  modesty 
does  not  forbid  me  to  hope. 

But  by  no  means  would  I  lead  the  student  to 
believe  that  his  examination  of  the  Art  of  Forensic 
Oratory  should  be  confined  to  the  treatise  with 
which  he  is  here  presented.  On  the  contrary,  the 
study  of  Logic,  Rhetoric,  and  Elocution,  on  a  far 
more  extensive  scale  than  the  limits  of  this  volume 


PREFACE.  Vli 

permit,  I  must  strenuously  recommend.  Nor  is  there 
a  work  on  Advocacy  or  on  any  one  of  its  subor- 
dinate topics,  nor  any  book  of  Trials,  nor  any  able 
novel  in  which  the  operations  of  skilful  advocates 
and  detectives  are  described,  that  he  may  not 
profitably  read  as  illustrating  and  applying  the 
rules  and  methods  which  this  manual  inculcates 
and  explains. 

WILLIAM  C.   ROBINSON. 

Yale  University, 

April  12,  1893. 


TABLE   OF   CONTENTS. 


Page 

INTRODUCTION i 

$art  I. 

OF  THE  THEORY  AND  PRACTICE  OF  ORATORY  IN 
GENERAL. 

CHAPTER  I. 
OF  THE  NATURE  AND  PURPOSE  OF  ORATORY. 

§  i.  Purpose  of  Oratory  to  Move  the  Will 7 

2.  Will  Moved  by  the  Emotions 7 

3.  Emotions  Excited  by  Ideas  Operating  on  the  Mind     ...  8 

4.  Energy  of  Emotions  Dependent  on  the  Energy  with  which 

Ideas  Operate  on  the  Mind 8 

5.  Energy  of   Ideas  Dependent   on   the   Nature  of  the  Idea, 

the    Susceptibility   of    the     Hearer,   and   the    Mode    of 
Presentation 8 

6.  Oratory  Moves  the  Will  by  Presenting  the  Ideas  Calculated 

to  Excite  those    Emotions  which  will   Produce  the  Act 
Desired 9 

CHAPTER   II. 
OF   THE   LIMITATIONS   OF   ORATORY. 

§  7.    Oratory  can  Employ  only  Noble  Ideas  and  Emotions  ...     10 

8.  Oratory  can  Employ  only  Ideas  Suited  to  the  Hearers     .     .     10 

9.  Selection  of  Suitable  Ideas  Difficult  for  Want  of  Knowledge 

of  the  Audience 11 

10.    Selection  of  Suitable  Ideas  Difficult  from  Varied  Character 

of  the  Audience 11 


X  TABLE  OF  CONTENTS. 

CHAPTER   III. 

OF  THE  FIELD   AND   DIVISIONS  OF  ORATORY. 

Page 
§  ii.   Oratory  Adapts  itself  to  its  Limitations  by  Employing  only 

Universal  Ideas  and  Emotions i3 

12.  Universal  Ideas  and  Emotions  Spring  from  the  Tendency 

of  Human  Nature  toward  Perfection 14 

13.  Tendency  toward   Perfection  Impels  Man  to  Do  his  Duty, 

to  become  Virtuous,  and  to  Attain  Happiness    ....     14 

14.  The  Universal  Ideas  of  Duty,  Virtue,  and  Happiness  Ex- 

cite Certain  Universal  Emotions 15 

15.  Every  Voluntary  Act  Springs  from  One  or  More  of  these 

Ideas  and  Emotions 16 

16.  Voluntary  Acts  Elicited  by  Oratory  are  of  Two  Classes, 

Religious  and  Political 16 

17.  Divisions  of  Oratory :  Judicial,  Demonstrative,  Deliberative     17 

CHAPTER  IV. 
OF   THE   ART   OF   ORATORY. 

§  18.   Art  of   Oratory  Consists  of   Two  Processes,   Convincing 

and  Persuading 18 

19.  Process   of   Convincing:     First    Step  to  Define  the  Pro- 

posed Act 18 

20.  Process  of  Convincing:   Definition  a  Species  of  Demon- 

stration   19 

21.  Process  of  Convincing:    Definition  Impossible  unless  the 

Orator  himself  Comprehends  the  Act  Defined  ....     19 

22.  Process  of  Convincing :  Second  Step  to  Demonstrate  that 

the  Proposed  Act  ought  to  be  Performed 20 

23.  Process  of  Convincing :  Modes  of  Demonstration  must  be 

Simple 21 

24.  Process  of  Convincing :    Modes  of  Demonstration  must  be 

Such  as  the  Hearer  is  Accustomed  to  Employ   ....     21 

25.  Process  of  Convincing :    Philosophical  and  Mathematical 

Demonstrations  Rarely  Permissible  in  Oratory       ...     22 

26.  Process  of  Convincing  :   Modes  of  Demonstration  Suitable 

to  Oratory:  Argumentum  ad  Hominem 22 


TABLE  OF  CONTENTS.  xi 

Pack 
§  27.    Process  of  Convincing:  Modes  of  Demonstration  Suitable 

to  Oratory  :  Examples 23 

28.  Process  of  Convincing :   Modes  of  Demonstration  Suitable 

to  Oratory:  Authority 24 

29.  Process  of  Convincing:    Demonstration  must  be  Brief  .     .  24 

30.  Process  of  Persuading :    its  Necessity 25 

31.  Process  of  Persuading :    Involves  the  Entire  Oration     .     .  25 

32.  Process   of   Persuading:    Intended   to    Awake    Attention, 

Excite  Interest,  and  Compel  Determination 25 

^.    Process  of  Persuading :   Orator  must  Identify  Himself  with 

his  Hearers 26 

34.  Process  of  Persuading:    Sufficient  for  Orator   to  Identify 

Himself  with  General  Characteristics  of  his  Hearers     .     27 

35.  Process  of  Persuading :    Orator  must  Adapt  Each  Part  of 

his  Oration  to  the  Progressive  Movement  of  the  Minds 

of  his  Hearers 28 

36.  Process  of  Persuading :   Orator  must  Adapt  Each  Part  of 

his  Oration  to  the  Changing  Attitude  of  his    Hearers 
toward  the  Proposed  Act :  Use  of  Rhetorical  Figures     .     29 

37.  Process   of    Persuading :    Orator   must    Believe   what    he 

Asserts,  and  Feel  the  Emotions  he   Seeks  to  Arouse    .     30 


CHAPTER   V. 
OF  THE   QUALIFICATIONS   OF   THE   ORATOR. 

38    Qualifications  of  the  Orator  Extraordinary 32 

39.  Qualifications  of  the  Orator  Chiefly  Acquired  by  Discipline  32 

40.  Qualifications  of  the  Orator  :  A  Good  Character  ....  33 

41.  Qualifications  of  the  Orator:  A  Good  Reputation     ...  34 

42.  Qualifications  of  the  Orator :  Knowledge  of  Human  Nature  35 

43.  Qualifications  of  the  Orator:  Earnestness 37 

44.  Qualifications  of  the  Orator:  Common  Sense 38 

45.  Qualifications  of  the  Orator :  Logical  Skill 39 

46.  Qualifications  of  the  Orator :  Universal  Information     .     .  40 

47.  Qualifications  of  the  Orator :  Pleasing  Manner      ....  42 

48.  Qualifications  of  the  Orator:    A  Manner    Indicative  of  a 

Good  Character 43 

49.  Qualifications  of  the  Orator:  A  Modest  Manner  ....  43 

50.  Qualifications  of  the  Orator:    A    Manner    Friendly  to  his 

Hearers 44 


xii  TABLE   OF   CONTENTS. 

Pact 
§  51.   Qualifications   of    the   Orator:    Cultivation    of   Manners 

Implies  Cultivation  of  Character 45 

52.   Qualifications  of  the  Orator :  Skill  in  the  Art  of  Speaking    45 


CHAPTER  VI. 
OF   FORENSIC   ORATORY. 

§  53.   Forensic  Oratory  the  Judicial  Form  of  Political  Oratory  .  47 

54.  Forensic  Oratory  Seeks  to  Obtain  the  Favorable  Decision 

of  a  Legal  Controversy 47 

55.  Circumstances  Conducing   to   the  Success  of    Forensic 

Oratory 48 

56.  Circumstances  Hindering  the  Success  of  Forensic  Oratory  4S 

57.  Art  of   Forensic  Oratory  Consists  of  Three  Processes : 

Statement,  Argument,  Appeal 49 

58.  The  Statement :  its  Purpose 49 

59.  The  Statement :  its  Importance 50 

60.  The  Argument :  Relates  to  Matters  of  Fact,  or  Matters  of 

Law,  or  Both 50 

61.  The  Argument :  Mode  of  Demonstrating  Matters  of  Fact  50 

62.  The  Argument :  Mode  of  Demonstrating  Matters  of  Law  52 

63.  The  Appeal :    its  Purpose  and  Scope 52 

64.  The  Appeal  :  Difficulties  to  be  Encountered 53 

( 5.    The  Appeal :  its  Oratorical  Limitations 54 

66.   The  Appeal :  its  Rhetorical  Limitations 55 


CHAPTER  VII. 
OF   PRACTICAL   ORATORY. 

§  67.    Practical  Oratory:  Invention 56 

68.  Practical  Oratory :  Expression 56 

69.  Practical  Oratory :  Arrangement 57 

70.  Practical  Oratory  :  Delivery 57 

71.  Practical  Oratory:  its  Divisions 58 


TABLE  OF  CONTENTS.  xiii 

part  II. 

OF  THE   PRACTICE   OF  FORENSIC   ORATORY. 


BOOK   I.  — OF   INVENTION. 

Page 
§  72.   Invention  Defined 59 

73.  Invention :    Ideas  must  Arouse   an   Impulse  toward  the 

Proposed  Act 59 

74.  Invention  :  Ideas  must  be  Suited  to  the  Hearers  and  the 

Occasion 60 

75.  Invention  :  its  Integral  Parts 60 


CHAPTER  I. 

OF  THE  IDEAS  SERVICEABLE  IN  FORENSIC  ORATORY. 

§  76.  The  Proposed  Act  in  Forensic  Oratory  always  Includes 

the  Idea  of  a  Duty  to  be  Performed 61 

77.  In  Forensic  Oratory-  the  Idea  of  Duty  is  always  derived 

from  the  Issues  in  the  Cause 61 

78.  Every  Cause  Presents  one  or  more  Primary  Issues  ...       62 

79.  A  Primary  Issue  may  Present  Several  Subordinate  Issues, 

on  any  One  of  which  the  Decision  of  the  Cause  may 
Turn 62 

80.  Ultimate  and  Decisive  Issues  to  be  Ascertained  and  Pre- 

sented for  Decision 63 

81.  To  Discover  the  Ultimate  Issue  is  the  Advocate's  First 

Duty 63 

82.  Difficulties  in  Discovering  the  Ultimate  Issue  Great  but 

not  Insuperable 64 

83.  Difficulty  of  Discovering  the  Ultimate  Issue  Greater  for 

the  Affirmative  than  for  the  Negative       64 

84.  In  Civil  Causes  Pleadings  are  Designed  to  Present  the 

Ultimate  Issue       64 

85.  In   Criminal  Causes  the  Pleadings  Rarely  Present  the 

Ultimate  Issue 65 


XIV  TABLE   OF  CONTENTS. 

Page 
§  86.   Having  Discovered  the  Ultimate  Issue  the  Advocate  must 
next  Search  for  Arguments  to  Support  his  Claims   in 
Regard  to  its  Decision 65 

87.  Arguments    Useful   only   when    Communicable    to    the 

Hearers 66 

88.  The  Issues  in  a  Cause  Present  other  Ideas  besides  that  of 

Duty 67 

89.  All  Ideas  to  be  Subordinated  to  the  Idea  of  Duty  ...  67 

90.  Subordinate  Ideas  to  be  Confined  to  the  Issue     ....  68 

91.  Subordinate  Ideas  must  be  Acceptable  to  the  Hearers      .  69 


CHAPTER  II. 
OF  THE   SOURCES  OF  IDEAS. 

f  92.   Ideas  Available  to  the  Advocate  are  of  Two  Classes : 

Ideas  Derived  from  Matters  Outside  the  Cause  ...      70 

93.  Ideas  Derived  from  Matters  within  the  Cause  Relate  to 

the  Persons  or  Things  Involved,  or  to  the  Law  ...       71 

94.  Ideas  Concerning  the  Persons  in  the  Cause 71 

95.  Ideas  Concerning  the  Persons  in  the  Cause:  their  Char- 

acter and  Circumstances 72 

96.  Ideas  Concerning  the  Persons  in  the  Cause  :  their  Racial 

and  Political  Relations 73 

97.  Ideas  Concerning  the  Persons  in  the  Cause  :  their  Social 

Relations 75 

98.  Ideas  Concerning  the  Persons  in  the  Cause  :  their  Per- 

sonal Interest  in  the  Cause  itself 76 

99.  Ideas  Concerning  the  Persons  in  the  Cause :  their  Con- 

nection with  the  Cause 77 

100.  Ideas   Concerning  the   Persons   in   the   Cause    always 

Numerous  and  Important 77 

101.  Ideas  Concerning  the  Things  in  the  Cause 78 

102.  Ideas  Concerning  the  Things  in  the  Cause  are  of  Ten 

Classes 78 

103.  Ideas  Concerning  the  Things  in  the  Cause  :  Existence    .  79 

104.  Ideas  Concerning  the  Things  in  the  Cause  :  Quality.     .  .So 

105.  Ideas  Concerning  the  Things  in  the  Cause  :  Quantity     .  80 

106.  Ideas  Concerning  the  Things  in  the  Cause:  Relation       .  8l 

107.  Ideas  Concerning  the  Things  in  the  Cause  :  Place      .     .  81 


TABLE   OF   CONTENTS.  XV 

Page 

108.  Ideas  Concerning  the  Things  in  the  Cause  :  Time       .     .      82 

109.  Ideas  Concerning  the  Things  in  the  Cause  :  Action  .  .  82 
no.  Ideas  Concerning  the  Things  in  the  Cause  :  Passion  .  .  83 
in.   Ideas  Concerning  the  Things  in  the  Cause  :  Posture  .     .       84 

112.  Ideas  Concerning  the  Things  in  the  Cause:    Habiliment      84 

113.  Ideas  Concerning  the  Persons  and  Things  in  the  Cause 

are  of  Infinite  Variety  and  Great  Importance      ...      85 

114.  Ideas  Concerning  the  Law  of  the  Cause:   Classes  of: 

Rules  of  Evidence 86 

115.  Ideas  Concerning  the  Law  of  the  Cause  :  Rules  Govern- 

ing the  Admissibility  of  Evidence 86 

116.  Ideas  Concerning  the  Law  of  the  Cause  :  Rules  Govern- 

ing the  Production  of  Evidence 87 

117.  Ideas  Concerning  the  Law  of  the  Cause:  Rules  Govern- 

ing Presumptions  of  Law  and  Fact 87 

118.  Ideas  Concerning  the  Law  of  the  Cause  :  Rules  Govern- 

ing the  Application  of  the  Facts  Proved  to  the  Points 

in  Issue 88 

119.  Ideas  Concerning  the  Law  of  the  Cause:  Rules  Govern- 

ing the  Decision  of  the  Cause  itself 89 


CHAPTER   III. 

OF    THE    COLLECTION     OF    IDEAS     CONCERNING 
MATTERS    OF   FACT. 

§120.   Collection  of  Ideas  concerning  Matters  Outside  the  Cause       91 

121.  Collection   of    Ideas   concerning    Matters    Within    the 

Cause :  Difficulties  Encountered 91 

122.  Ideas  concerning  Matters  within  the  Cause  Collected  by 

Direct  Investigation  or  by  Inference  :  Field  of  Direct 


Investigation 


92 


123.  Direct    Investigation:    Examination  of  the   Client:   its 

Difficulties 0,2 

124.  Direct    Investigation:   Examination   of  the   Client:   his 


General  Statement 


93 


125.  Direct  Investigation:  Examination  of  the  Client:  Ques- 

tions of  the  Advocate 93 

126.  Direct  Investigation :  Examination  of  the  Client :  Cross 

Questions  of  the  Advocate 94 

6 


XVI  TABLE   OF   CONTEXTS. 

Page 
§  127.   Direct  Investigation  :  Examination  of  the  Client :  Result 

Reduced  to  Writing 94 

128.  Direct  Investigation :  Examination  of  Alleged  Witnesses  94 

129.  Direct  Investigation  :  Examination  of  Objects  and  Places  95 

130.  Direct   Investigation:    Examination   of   the    Results   of 

Experiment 95 

131.  Direct  Investigation  :  Examination  of  Private  Writings  96 

132.  Direct  Investigation  .  Examination  of  Public  Records     .  97 

133.  Direct  Investigation  :    Not  Confined  to  One  Side  of  the 

Cause 97 

134.  Collection  of  Ideas  by  Inferences 98 

135.  Inferences:   Four  Classes 99 

136.  Inferences  :  Necessary,  Probable,  or  Possible     ....  99 

137.  Inferences:  Probable  Inferences  Sufficient  for  Judicial 

Direction 100 

138.  Inferences:   Value  of  Possible  Inferences 101 

139.  Inferences :  Elements  of :  Value  how  Estimated :  Meas- 

ure of  Probability 101 

140.  Inferences :    Value  Tested  by  Reducing  to   Syllogistic 

Form 102 

141.  Inferences  :  Issue  Indicates  what  Facts  are  to  be  Sought 

for  by  this  Method 103 


CHAPTER  IV. 

OF    THE    COLLECTION    OF    IDEAS     CONCERNING 
MATTERS   OF   LAW. 

142.  Ideas   concerning  the   Law  of  the   Cause  collected  by 

Direct  Investigation  and  by  Inference 104 

143.  Direct   Investigation :   Formal  Statements  of  the  Law 

Classes  of 104 

144.  Direct  Investigation :  Statutes 105 

145.  Direct  Investigation  :  Definitions  and  Maxims  ....  105 

146.  Direct  Investigation :  Precedents 106 

147.  Direct  Investigation  :  Rules  of  Practice 107 

148.  Inferences  of  Law  :  Their  Sources,  Forms,  and  Tests  of 

Value 108 

149.  Inferences  from  Settled  Principles  of  Law 10S 

150.  Inferences  from  Decisions  in  Other  Jurisdictions    .     •     .  109 


TABLE   OF   CONTENTS.  XVli 

Page 

151.  Inferences  from  Decisions  in  Analogous  Cases  ....     no 

152.  Inferences  from  Considerations   of    Public   Policy,  and 

from  the  General  Spirit  of  the  Law 112 

153.  Inferences   of  Law,  Correctly  Drawn  by  the  Advocate 

and    the    Court  from    the    same    Premises,   will  be 
Identical 113 


CHAPTER  V. 
OF  THE  SELECTION  AND  CLASSIFICATION  OF  IDEAS. 

§  154.    Selection  of  Ideas 114 

155.  Selection   of   Ideas:    Rejection   of   Unavailable   Ideas: 

Classification  of  Available  Ideas 114 

156.  Classification   of   Ideas :    its    Importance :    Enables   the 

Advocate  Properly  to  Advise  his  Client 115 

157.  Classification  of  Ideas  :  Exhibits  the  Value  of  Each  Idea 

as  a  Factor  in  the  Cause 117 

158.  Classification  of  Ideas  :  Enables  the  Advocate  to  Forecast 

the  Operations  of  his  Adversary 1 17 

159.  Selection  of  Classified  Ideas  :  Principles  Governing  the 

Selection 118 

160.  Selection  of  Classified   Ideas :  Value  of  an  Idea  Deter- 

mined by  the  Character  and  Attitude  of  the  Hearer     .     118 

161.  Selection  of  Classified  Ideas:   Ideas  to  be   Selected  in 

View  of  their  Known  Effect  upon  the  Hearers    .     .     .     120 

162.  Selection  of  Classified  Ideas:    Ideas  to  be  Selected  in 

View  of  the  Medium   through   which   they  must  be 
Presented  to  the  Hearer 121 

163.  Arrangement  of  Selected  Ideas 122 

CHAPTER   VI. 

OF  THE    PRESENTATION    OF   IDEAS    BY   THE    PRO- 
DUCTION   OF   EVIDENCE   IN    COURT. 

§  164.   Forensic  Oratory  Communicates  Ideas  to  the  Hearers  in 

Many  Ways  during  the  Conduct  of  the  Trial      .     .     .     124 
165.    Production  of  Evidence  in  Court  not  a  Mere  Search  for 

Information 125 


xvill  TABLE  OF  CONTENTS. 

Page 
§  166.   The  Production  of  Evidence  in  Court  a  Complete  Ora- 
torical Act 125 

167.   Importance  of   Properly  Selecting,  Training,  and  Pre- 
senting Witnesses 126 

CHAPTER  VII. 

OF  THE  QUALIFICATIONS  OF  WITNESSES. 

§  168.   Qualifications  of  the  Witness   Resemble  those   of   the 

Advocate 128 

169.  Qualifications  of  the  Witness :  Clear  Ideas  of  the  Fact 

to  which  he  Testifies 128 

170.  Qualifications  of  the  Witness :  Knowledge  of  the  Rela- 

tion between   the   Issue   and  the   Fact  to  which  he 
Testifies 129 

171.  Qualifications  of  the  Witness:  A  Good  Appearance  and 

Pleasing  Manner 130 

172.  Qualifications  of  the  Witness  :  Familiarity  with  Customs 

*  and  Proceedings  of  Courts 131 

173.  Qualifications  of   the  Witness:   Quick  Wit  and  Sound 

Judgment 132 

174.  Qualifications  of  the  Witness  :  an  Even  Temper    .     .     .     133 

175.  Qualifications  of  the  Witness:  a  Cautious  and  Consider- 

ate Disposition 134 

176.  Qualifications  of  the  Witness :  Truthfulness       ....     135 

177.  Qualifications  of  the  Witness:  Though  Good  Witnesses 

are  Rare,  Some  are  Usually  Obtainable 136 


CHAPTER  VIII. 
OF  THE   TRAINING   OF   WITNESSES. 

§  178.  Training  of  Witnesses:  How  far  Legitimate     ....     138 

179.  Training  of  the  Witness:  To  Make  him  Comprehend 

the  Facts  to  which  he  Testifies 138 

180.  Training  of  the  Witness:    To  Make  him  Comprehend 

the  Relation  between  the  Issue  and  the  Facts  to  which 

he  Testifies 139 


TABLE   OF   CONTENTS.  xix 

•  Page 

§  181.   Training  of  the  Witness:  To  Cultivate  his  Appearance 

and  Manners 139 

182.  Training  of  the  Witness :  To  Familiarize  him  with  Court 

Proceedings 140 

183.  Training  of  the  Witness  :  To  Endure  Cross-Examination     141 

184.  Training    of    the  Witness:    To    Control    his    Irritable 

Temper 142 

185.  Training  of  the  Witness :   To  Make  him  Cautious  and 

Considerate 143 

186.  Training  of  the  Witness  :  To  Render  him  Truthful  .     .  143 

187.  Training  of  the  Witness  :  A  Difficult  and  Tedious  Task  145 

188.  Training  of   the   Witness :    Renders  the  Production  of 

Evidence  Easier  and  More  Certain 145 

189.  Training  of  the  Witness :  Relieves  the  Advocate  of  much 

Perplexity  during  the  Trial 146 


CHAPTER   IX. 
OF  THE   DIRECT   EXAMINATION   OF  WITNESSES. 

190.  Production  of  Evidence  Must  be  Governed  by  Orator- 

ical Rules  :  Evidence  Must  be  Intelligible,  Convincing, 

and  Persuasive 148 

191.  All  Evidence,  except  that  of  Experts,  Naturally  Intelligi- 

ble :  Production  of  Expert  Evidence 148 

192.  Intelligible    Evidence :    how   Rendered    Unintelligible : 

the  Rambling  Witness:  his  Treatment 150 

193.  Intelligible  Evidence :  how  Rendered  Unintelligible:  the 

Dull  and  Stupid  Witness :  his  Treatment 151 

194.  Intelligible  Evidence  :  how  Rendered  Unintelligible :  the 

Timid  and  Self-Conscious  Witness  :  his  Treatment      .     152 

195.  Intelligible  Evidence  :  how  Rendered  Unintelligible :  the 

Bold  and  Zealous  Witness  :  his  Treatment     ....     154 

196.  Intelligible  Evidence  :  how  Rendered  Unintelligible  :  the 

Hostile  Witness  :  his  Treatment 155 

197.  Intelligible    Evidence :     how    Rendered    Unintelligible : 

Ignorance  of  the  Advocate  Concerning  the  Cause  .     .     157 


XX  TABLE   OF  CONTENTS. 

Pagb 
§  198.    Intelligible    Evidence :     how   Rendered   Unintelligible : 

Thoughtlessness  and  Impetuosity  of  the  Advocate    .     158 

199.  Intelligible    Evidence:     how  Rendered    Unintelligible: 

Failure  of  the  Advocate  to  Observe  Oratorical  Meth- 
ods in  Presenting  Evidence   159 

200.  Intelligible  Evidence :  to  be  Presented  in  Chronological 

Order 160 

201.  Convincing  and   Persuasive  Evidence:    Attention   and 

Interest  to  be  Aroused  by  the  Opening  Evidence     .     .     161 

202.  Convincing  and   Persuasive    Evidence :    Importance   of 

Opening  Evidence 162 

203.  Convincing  and  Persuasive  Evidence :  Evidence  Cover- 

ing the  Entire  Case  next  to  be  Presented 162 

204.  Convincing  and   Persuasive  Evidence :   Most  Effective 

Order  of  Presenting  Evidence       163 

205.  Convincing  and  Persuasive  Evidence  :  Effectiveness  how 

far  Dependent  on  the  Qualities  of  the  Witnesses    .    .     164 

206.  Convincing    and     Persuasive    Evidence :     Effectiveness 

Impaired  by  Poor  Witnesses 165 

207.  Convincing   and    Persuasive    Evidence :     Effectiveness 

Increased  by  Multiplying  Good  Witnesses      ....     166 

208.  Convincing  and  Persuasive  Evidence :   Poor  Witnesses, 

when  Necessary,  how  Introduced 167 

209.  Convincing    and    Persuasive    Evidence :    Effectiveness 

Increased   or   Diminished  by   the   Demeanor   of  the 
Advocate  toward  his  Witnesses 168 

210.  Convincing  and  Persuasive  Evidence:  Demeanor  of  the 

Advocate  toward  a  Good  Witness 168 

211.  Convincing  and  Persuasive  Evidence :   Demeanor  of  the 

Advocate  toward  a  Poor  Witness 169 

212.  Convincing    and    Persuasive    Evidence:    Effectiveness 

Aided  or  Impaired  by  the  Demeanor  of   the  Judge 
toward  the  Advocate 170 

213.  Convincing    and    Persuasive    Evidence :     Effectiveness 

Aided  or  Impaired  by  the  General  Demeanor  of  the 
Advocate 171 


TABLE   OF   CONTEXTS.  xxi 

CHAPTER   X. 

OF  THE   CROSS-EXAMINATION   OF   WITNESSES. 

Page 

214.  Cross-Examination :  its  Purpose 174 

215.  Cross-Examination  an  Oratorical  Act :  its  Limitations    .     174 

216.  Cross-Examination:    Cross-Examiner  must  Understand 

the  Witness  and  the  Impressions    already  Made   by 
him  upon  the  Jury 175 

217.  Cross-Examination:    Duties  of   Cross-Examiner   during 

the  Direct  Examination 175 

218.  Cross-Examination:    Cross-Examiner    not   to   Interfere 

during  the  Direct  Examination 176 

219.  Cross-Examination  :  Interference  of  the  Cross- Examiner 

during  the  Direct  Prejudices  his  Cross-Examination    .     177 

220.  Cross-Examination  :  Interference  of  the  Cross-Examiner 

with  the  Direct:   Method  of,  when  Necessary      .     .     .  179 

221.  Cross-Examination:  its  Dangers 179 

222.  Cross-Examination  :  Rarely  to  be  Omitted 180 

223.  Cross-Examination  :  its  Scope  and  Methods       ....  181 

224.  Cross-Examination  :   Exposure   of   Incorrectness  in  the 

Testimony    of    a    Credible    Witness :    Incorrectness 
Arising  from  Faults  of  Expression 182 

225.  Cross-Examination  :  Exposure  of  Incorrectness  in  the 

Testimony    of    a    Credible    Witness :    Incorrectness 
Arising  from  Stating  Inferences  as  Facts 184 

226.  Cross-Examination :    Exposure    of  Incorrectness  in  the 

Testimony    of    a    Credible    Witness :    Incorrectness 
Arising  from  Mistakes  of  Fact 185 

227.  Cross-Examination :    Exposure  of  Incorrectness  in  the 

Testimony  of  a  Credible  Witness :  Attitude  of  Cross- 
Examiner  toward  the  Witness 185 

228.  Cross-Examination:    Exposure  of    the  Unreliability  of 

the  Witness :  Causes  of  Unreliability 186 

229.  Cross-Examination:  Exposure  of  the  Unreliability  of  the 

Witness  :  Defective  Apprehension:  Disordered  Senses     186 

230.  Cross-Examination :    Exposure   of    the    Unreliability  of 

the  Witness  :  Defective  Apprehension  :  Unfamiliarity 
with  the  Thing  Apprehended 187 

231.  Cross-Examination  :    Exposure   of  the    Unreliability  of 

the  Witness  :  Defective  Apprehension  :  Want  of  At- 
tention      189 


XX11  TABLE  OF  CONTENTS. 

Pagk 
§  232.   Cross-Examination  :   Exposure  of  the   Unreliability  of 
the  Witness :  Defective  Apprehension :  Want  of  At- 
tention :  its  Causes 190 

233.  Cross-Examination :    Exposure   of   the    Unreliability  of 

the  Witness  :  Defective  Apprehension :  Want  of  At- 
tention :  its  Causes 191 

234.  Cross-Examination :    Exposure   of   the    Unreliability   of 

the  Witness:  Defective  Apprehension:   Want  of  At- 
tention :  how  Exposed 192 

235.  Cross-Examination :    Exposure   of  the    Unreliability  of 

the  Witness  :  Defective  Memory  :  Defects  Classified     193 

236.  Cross-Examination :    Exposure    of    the    Unreliability  of 

the  Witness:  Defective  Memory:  how  Detected     .     .     194 

237.  Cross-Examination :    Exposure    of   the    Unreliability  of 

the  Witness:  Defective  Memory:  how  Exposed     .     .     194 

238.  Cross-Examination:    Exposure    of   the    Unreliability   of 

the  Witness :  Defective  Powers  of  Expression    .     .     .     195 

239.  Cross-Examination :    Exposure    of    the    Unreliability   of 

the  Witness :    Defective  Powers  of  Expression :  how 
Detected  and  Disclosed 196 

240.  Cross-Examination :    Exposure    of  the    Unreliability  of 

the  Witness:  Untruthfulness:  Classes  of  Liars     .     .     197 

241.  Cross-Examination  :  Exposure  of  the  Unreliability  of  the 

Witness:  Untruthfulness:  Innocent  and  Careless  Liars     198 

242.  Cross-Examination :   Exposure   of  the    Unreliability   of 

the   Witness:     Untruthfulness:    Wilful    Liars:   when 

to  Cross-Examine 200 

243.  Cross-Examination :    Exposure  of   the   Unreliability   of 

the  Witness:    Untruthfulness:  Wilful  Liars:   Modes 

of  Cross-Examining 201 

244.  Cross-Examination :    Exposure    of   the    Unreliability  of 

the    Witness :     Untruthfulness :    Wilful    Liars :    Ex- 
posure of  Evil  Motives 201 

245.  Cross-Examination :    Exposure   of   the    Unreliability   of 

the    Witness:     Untruthfulness:    Wilful    Liars:    Ex- 
posure of  Evil   Motives 202 

246.  Cross-Examination :   Exposure   of   the    Unreliability   of 

the    Witness:     Untruthfulness:    Wilful    Liars:    Ex- 
posure of  Evil  Motives 203 

247.  Cross-Examination :    Exposure   of  the    Unreliability   of 

the    Witness:     Untruthfulness:    Wilful    Liars:    Ex- 
posure of  Evil  Motives 204 


TABLE   OF   CONTENTS.  XX111 

Page 
§  248.    Cross-Examination  :    Exposure    of  the    Unreliability  of 
the    Witness :     Untruthfulness :    Wilful    Liars :    Ex- 
posure of  Evil  Motives 205 

249.  Cross-Examination :    Exposure    of   the    Unreliability   of 

the    Witness :     Untruthfulness :    Wilful    Liars :    Ex- 
posure of  Evil   Motives 206 

250.  Cross-Examination :    Exposure   of   the    Unreliability  of 

the    Witness:    Untruthfulness:    Wilful    Liars:    Self- 
Contraclictions 207 

251.  Cross-Examination :    Exposure   of   the    Unreliability   of 

the    Witness :    Untruthfulness :    Wilful    Liars :    Self- 
Contradictions 209 

252.  Cross-Examination :    Exposure  of  the    Unreliability   of 

the    Witness:    Untruthfulness:    Wilful  Liars:    Con- 
tradiction of  other  Witnesses 210 

253.  Cross-Examination :    Exposure   of   the   Unreliability   of 

the  Witness-  Bad  Character 211 

254.  Cross-Examination :    Exposure  of   the   Unreliability   of 

the  Witness:  Impeachment 213 

255.  Cross-Examination :  Counterbalancing  the   Impressions 

made  by  the  Direct 214 

256.  Cross-Examination  :    Qualifications  of  the  Cross-Exam- 

iner: His  Knowledge  of  the  Cause 216 

257.  Cross-Examination  :  Manner  of  the  Cross-Examiner  .     .     217 


CHAPTER  XL 

OF   THE    RE-DIRECT   EXAMINATION. 

§  258.   Duties  of  the  Advocate  during  the  Cross-Examination 

of  his  own  Witnesses  :  to  Protect  his  Witness     .     .     .     218 

259.  Duties  of  the  Advocate  during  the  Cross-Examination  of 

his  own  Witnesses:  to  Prepare  for  the  Re-Direct  Ex- 
amination       219 

260.  Re-Direct  Examination :  its  Field  and  Limits     ....  219 

261.  Re-Direct  Examination :  Not  to  be  Omi.tted 220 

262.  Re-Direct  Examination:  Method  of  Conducting     .     .     .  221 

263.  Re-Cross-Examination  and  Subsequent  Proceedings  .     .  222 

264.  Production   of    the    Evidence :    Fundamental   Principle 

Governing  the  Advocate 223 


XXIV  TABLE   OF   CONTENTS. 

CHAPTER  XII. 

OF   ALTERCATION. 

Page 

§  265.   Altercation  Defined 226 

266.  Altercation  :  Subjects  of 226 

267.  Altercation  :   Purposes  of 227 

268.  Altercation :  Advantages  of 227 

269.  Altercation  :  Qualifications  of  the  Advocate  for     ...  228 

270.  Altercation :  an  Act  of  Invention 228 


BOOK  II.— OF  EXPRESSION. 

271.  Act  of  Expression  :  its  Scope  and  Divisions      ....     229 

CHAPTER    I. 
OF   THE   CHOICE   OF  WORDS. 

272.  Words :  Intelligibility  Defined :  Elements  of     ...     .     230 

273.  Words:    Intelligibility:     Correctness:     Comprehension 

of  Words 230 

274.  Words :     Intelligibility :     Correctness :     Extension      of 

Words 231 

275.  Words :  Intelligibility :  Correctness  :  Equivocal  Words  232 

276.  Words:    Intelligibility:  Correctness:  Tests  of  ....  233 

277.  Words  :  Intelligibility:  Correctness  :  Acquisition  of  Cor- 

rect Words 234 

278.  Words:  Intelligibility;  Understood  by  the  Hearer     .     .     235 
279    Words  :  Intelligibility  :  Understood  by  the  Hearer     .     .     236 

280.  Words :  Attractiveness :  Appropriate  Sounds    ....     237 

281.  Words:  Attractiveness:  Synonyms 238 

282.  Words :     Attractiveness :     Acquisition     of      Attractive 

Words 239 


TABLE   OF   CONTENTS.  XXV 


CHAPTER   II. 

OF  THE  COLLOCATION  OF  WORDS   INTO  SENTENCES. 

Page 

§  283.    Sentences:  Intelligible:  Attractive 240 

284.    Sentences :  Intelligibility :  Clearness 240 

2S5     Sentences  :  Intelligibility :  Unity 242 

286.  Sentences:  Attractiveness:   Strength 243 

287.  Sentences:  Attractiveness:  Harmony 244 

2SS.    Periods:  Construction 245 

2S9.  Sentences  :  Facility  in  Constructing  :  how  Acquired  .     .  245 


CHAPTER   III. 

OF   THE   CONSTRUCTION    AND   USE   OF    RHETORICAL 
FIGURES. 

§  290.    Figures :  their  Utility 247 

291.  Figures :  Classes 247 

292.  Figures  of  Thought 248 

293.  Figures  of  Words  :  Artificial  Meanings  :  Metaphors  .     .  250 

294.  Figures  of  Words  :  Artificial  Meanings :  Allegory :  Me- 

tonymy :   Synecdoche 251 

295.  Figures  of  Words  :  Natural  Meaning  :  Ellipsis  :  Hyper- 

baton  :  Syllepsis :  Pleonasm 252 

296.  Figures  of  Words  :  Oratorical  Figures 253 

297.  Figures  in  Forensic  Oratory 253 

298.  Acquisition  of  Figures 254 


CHAPTER   IV. 
OF   STYLE. 

§  299.    Style  Defined  :  Concise  or  Diffuse 255 

300.  Style  :  Dry  :  Plain  :  Neat :  Elegant  :  Flowery  ....  256 

301.  Style  :  Simple  :  Moderate :  Sublime 257 

302.  Style  of  Oration  :  Propriety 258 

303.  Style  in  Forensic  Oratory 260 

304.  Style  :   Acquisition  of 260 


XXVI 


TABLE   OF  CONTENTS. 


BOOK   III.  — OF  ARRANGEMENT. 

Page 

305.  Arrangement:  Importance 263 

306.  Arrangement :  Method 264 


CHAPTER   I. 
OF   THE   EXORDIUM. 

307.  Exordium:  its  Necessity 26? 

308.  Exordium :  its  Purpose 265 

309.  Exordium  :  its  Subjects 267 

310.  Exordium :  Selection  of  Subject 268 

311.  Exordium:  Preparation 269 

312.  Exordium  :  Style  :  Delivery 270 


CHAPTER   II. 
OF  THE   STATEMENT   AND   PARTITION. 

313.  The  Statement :  its  Purpose  and  Necessity 271 

314.  The  Statement :  its  Subjects 271 

315.  The  Statement :  its  Qualities  :  Truthful 272 

316.  The  Statement :  Probable 273 

317.  The  Statement :  Favorable 274 

318.  The  Statement :  Clear 274 

319.  The  Statement :  Brief 275 

320.  The  Statement :  Pleasing  to  the  Hearers 275 

321.  The  Partition 276 


CHAPTER   III. 
OF  THE   PROOF  AND   REFUTATION. 

322.  The  Proof  and  Refutation 278 

323.  The  Proof :  Discovery  of  Arguments 278 

324.  The    Proof:    Discovery   of     Arguments     in     Forensic 

Oratory 279 


TABLE   OF   CONTENTS.  xxvii 

Page 

325.  The  Proof:  Construction  of  Arguments 280 

326.  The  Proof  :  Selection  of  Arguments 281 

327.  The  Proof  :  Arrangement  of  Arguments 283 

328.  The  Refutation 284 

329.  The  Refutation  :  Irrefutable  Arguments 284 

330.  The  Refutation  :  Refutable  Arguments 285 

331.  The  Refutation :  Mode  of 285 

332.  The  Proof  and  Refutation  :  their  Order 286 

333.  The  Proof  and  Refutation  :  their  Style 287 

334.  The  Proof  and  Refutation  on  Issues  at  Law 287 


CHAPTER   IV. 
OF  THE   PERORATION. 

335.  The  Peroration  :  its  Purposes,  Character,  and  Forms      .     289 

336.  The  Peroration :  First  Form  :  Summation 289 

337.  The  Peroration :    Second  Form :    Appeal  to  the   Emo- 

tions :  when  Attempted 290 

338.  The  Peroration :    Second  Form :    Appeal  to  the  Emo- 

tions :  Method 291 

339.  The   Peroration :    Second  Form :    Appeal  to  the  Emo- 

tions :  Variations  in  Form 292 

340.  The  Peroration :  its  Conclusion 292 

CHAPTER  V. 

OF  THE  PREPARATION  OF  AN  ORATION. 

341.  Preparation  of  an  Oration  :  its  Order 294 

342.  The  Preparation  of  an  Oration  :  Writing 295 

343.  The  Preparation  of  an  Oration  :  Memorizing     ....  295 

344.  The  Preparation  of  an  Oration :   Extemporaneous  Ora- 

tions:   Mode  of   Acquiring  Facility  in:  Adopting  a 
Fixed  Plan  of  Speech 296 

345.  The  Preparation  of  an  Oration  :  Extemporaneous  Ora- 

tions :    Mode   of    Acquiring   Facility   in :    Habits   of 
Observing  and  Remembering  Details 297 

346.  The  Preparation  of  an  Oration :   Extemporaneous  Ora- 

tions:   Mode   of    Acquiring    Facility    in:    Habit    of 
Speaking  Slowly 299 


XXVlll  TABLE  OF  CONTENTS. 

Page 
§  347.   The  Preparation  of  an  Oration.   Extemporaneous  Ora- 
tions :  Mode  of  Acquiring  Facility  in :    Habit  of  Col- 
lating Ideas  as  Produced  in  Evidence 299 

348.  The   Preparation  of  an  Oration  ■  Extemporaneous  Ora- 

tions :   Mode  of  Acquiring  Facility  in :    Premeditation 

of  the  Ideas 300 

349.  The  Preparation  of  an  Oration  .  Extemporaneous  Ora- 

tions :  Mode  of  Acquiring  Facility  in  ;  Ideas  Premedi- 
tated :  Skeleton 300 


BOOK  IV.  — OF   DELIVERY. 
§  350.   Delivery :  its  Importance,  Purposes,  and  Divisions    .     .     302 

CHAPTER   I. 
OF   VOICE. 

§  351.   Delivery:  the  Voice  :  its  Qualities  and  Cultivation    .     .     303 

352.  Delivery  :  the  Voice  :  its  Management 304 

353.  Delivery:    the  Voice:    Articulation:    its  Qualities   and 

Defects 305 

354.  Delivery  :   the  Voice  :    Pronunciation  :  Accent :  Empha- 

sis :  Pauses :  Inflections 305 

355.  Delivery :  the  Voice  :  Adaptation  to  Different  Parts  of 

the  Oration 306 

356.  Delivery:    the   Voice:     Acquisition   of   Facility  in   its 

Management  and  Use 307 

CHAPTER   II. 
OF  GESTURE. 

§  357.  Delivery :  Gesture  :  its  Nature  and  Divisions    ....  308 

358.  Delivery:  Gesture:  General  Position  of  the  Body      .     .  308 

359.  Delivery  :  Gesture :  Changing  the  Positions  of  the  Body  309 

360.  Delivery:    Gesture:    General    Positions   of    the    Body: 

Carriage  of  Head  and  Limbs :  Faults  of  Carriage  .     .     310 

361.  Delivery:  Gesture-  Expression  of  the  Countenance      .     311 


TABLE   OF   CONTENTS.  xxix 

Page 
§362.   Delivery:  Gesture:  Motions  of  the  Head  and  Body      .     312 

363.  Delivery:    Gesture:    Motions  of  the  Arms  and  Hands: 

Single  Gestures 313 

364.  Delivery :  Gesture  :  Motions  of  the  Arms  and  Hands  : 

Single  Right  Hand  Gestures 313 

365.  Delivery:  Gesture:    Motions  of  the  Arms  and  Hands: 

Single  Left  Hand  Gestures :  Index-Finger  Gestures    .     314 

366.  Delivery:  Gesture:    Motions  of  the  Arms  and  Hands: 

Course  of  Single  Gesture :    Position  of  Fingers  and 
Body 315 

367.  Delivery :  Gesture  :  Motions  of  the  Arms  and  Hands : 

Double  Gestures 315 

368.  Delivery :   Gesture :    Motion  of  the  Arms  and  Hands : 

Imitative  Double  Gestures 316 

369.  Delivery  :   Gesture  :    Motions  of  the  Arms  and  Hands  : 

Imitative  Single  Gestures 317 

370.  Delivery :   Gesture  :    Motions  of  the  Arms  and  Hands : 

Alternate  Gestures :   Continuous  Gestures      .     .     .     .     31S 

371.  Delivery:   Gesture:   Motions  of  the  Arms  and  Hands: 

Importance  of  Special  Training 318 

372.  Delivery  of  the  Different  Parts  of  an  Oration  :  Propriety 

the  most  Essential  Quality  of  Delivery 319 

Conclusion 320 


APPENDIX. 


I.  —  Compendium  of  Logic 321 

II.  —  Characteristics  of  Ancient  Oratory 334 


INDEX 339 


INTRODUCTION. 


It  is  a  common  opinion  that  Oratory,  as  a  great  social 
force,  belongs  to  an  inferior  stage  of  human  development, 
and,  therefore,  that  as  civilization  has  advanced  eloquence 
has  necessarily  declined.  This  opinion  is,  to  a  certain 
extent,  undoubtedly  correct.  The  orator  and  the  poet  are 
no  longer,  as  they  were  in  ruder  ages,  the  chief  teachers 
of  the  people,  furnishing  to  the  community  its  governing 
ideas,  and  exercising  over  its  mental  operations  an  almost 
absolute  control.  The  art  of  printing  now  affords  to  the 
thinker  the  readiest  means  of  conveying  thought,  and  offers 
to  the  scholar  a  method  of  acquiring  knowledge  far  more  con- 
venient and  available  than  any  kind  of  oral  communication. 
The  general  diffusion  of  intelligence,  by  gradually  delivering 
man  from  the  dominion  of  his  passions  and  enthroning  reason 
as  the  mistress  of  his  actions,  renders  him  less  susceptible 
to  sudden  impulses,  whether  engendered  by  ideas  suggested 
to  him  from  without  or  from  within.  The  wonderful  ener- 
gies of  the  newspaper  and  periodical  press  so  widely  and  so 
quickly  disseminate  information  upon  all  topics  of  social, 
political,  and  private  interest,  that  in  every  assemblage  there 
are  many  who  approach  the  subject  of  the  hour  with  precon- 
ceived opinions,  which  the  most  eloquent  persuasions  would 
fail  to  overcome.  The  extension  of  commercial  relations, 
the  consequent  growth  of  international  law,  and  the  more 
settled  and  orderly  condition  of  civil  society,  have  made 
infrequent  those  occasions  of  public  excitement  which  give 
to  the  orator  a  worthy  theme  and  an  eager  auditory.     The 

i 


INTRODUCTION. 

constant  infliction  upon  the  people  of  ill-considered  thought 
and  untrained  elocution  from  the  platform,  the  pulpit,  and 
the  bar  has  deadened  their  sensibility  to  human  speech,  and 
disposed  them  to  regard  its  artifices  with  suspicion  and  con- 
tempt. By  all  these  causes  the  opportunities  and  influence 
of  oratory  have  been  more  and  more  restricted,  and  its  value 
as  a  social  force  has  been  correspondingly  diminished. 

It  is,  however,  true  that  every  age  and  every  nation  has  its 
orators,  —  men  whom  the  most  cynical  critic  never  dreams 
of  confounding  with  the  common  demagogue,  and  to  whom 
the  learned  and  the  illiterate  pay  equal  honor.  Every  great 
national  emergency  finds  some  mind  to  appreciate  and  some 
tongue  to  express  its  momentous  issues,  and  to  such  orators 
the  multitude  still  lend  willing  ears,  and  accord  the  homage 
of  obedient  hearts.  Whatever  coldness  may  have  crept  into 
our  modern  blood,  however  dormant  lie  within  us  those 
impulses  which  at  the  call  of  ancient  oratory  woke  to  tri- 
umph over  tyranny  and  wrong,  when  any  strong  convulsion 
shakes  the  state,  and  liberties  and  institutions  are  imperilled, 
the  voice  which  warns  us  of  the  danger  and  urges  us  to 
action  meets  a  response  as  swift  and  vigorous  as  Athens 
gave  to  the  fierce  summons  of  Demosthenes.  Be  it  that 
learning  has  increased  and  passion  lost  its  sway,  that  edu- 
cated tastes  demand  a  higher  and  more  cultivated  oratory ; 
when  the  hour  and  the  man  have  come  the  populace  are 
still  but  puppets  in  his  fingers,  and  move  according  to  the 
promptings  of  his  will. 

That  which  is  true  of  oratory  in  general  is  even  more  true 
of  Forensic  Oratory.  The  forum  is  no  longer  as  of  old  a 
great  arena  for  oratorical  display.  The  increase  in  the  num- 
ber and  complexity  of  civil  causes,  the  determination  of 
many  issues  by  single  judges,  the  devotion  of  so  large  a  pro- 
portion of  the  profession  to  office  and  chambers  practice, 
the  meagre  interest  manifested  by  the  people  in  our  public 
trials,  and,  perhaps  more  than  all,  a  general  feeling  that  time 
2 


INTRODUCTION. 

devoted  to  rhetoric  and  elocution  could  be  better  spent  in 
legal  study  and  in  the  acquirement  of  a  knowledge  of  affairs, 
have  tended  to  exclude  oratory  from  among  the  neces- 
sary accomplishments  of  the  successful  lawyer,  and  led  us 
to  regard  its  cultivation  as  a  matter  more  of  taste  than 
duty. 

Yet  for  the  lawyers  who  aspire  to  become  advocates,  as 
in  their  youth  at  least  almost  all  lawyers  do,  the  cultivation 
of  the  art  of  oratory  is  still  absolutely  necessary.  The  proper 
oral  presentation  of  a  cause  to  a  court  or  jury  requires  no 
small  degree  of  skill  and  wisdom.  Unlike  all  other  orators, 
the  advocate  addresses  auditors  who  have  no  personal  con- 
cern in  the  question  he  discusses,  and  whose  interest  in  his 
cause  depends  upon  the  clearness  of  his  argument  and  the 
effectiveness  of  his  appeal.  Judges  and  jurors  are  but  men, 
having  the  same  natural  indifference  to  what  does  not  directly 
affect  themselves  as  other  men ;  and  whatever  may  be  their 
disposition  to  do  their  exact  duty,  they  need  assistance  in 
ascertaining  what  their  duty  is,  and  in  overcoming  the 
prejudices  or  sluggishness  which  hinder  them  from  doing  it. 
It  is  the  office  of  the  advocate  to  furnish  this  assistance,  to 
arrest  their  attention,  to  interest  them  in  the  questions  which 
they  are  to  determine,  to  lead  them  step  by  step  to  the  con- 
viction that  his  claims  are  just,  and  thus  to  compel  them  to 
award  their  judgment  in  his  favor.  It  is  immaterial  whether 
the  issues  are  presented  on  a  simple  motion  or  an  interlocu- 
tory controversy  or  on  the  merits  of  the  cause  itself,  or 
whether  the  tribunal  by  which  they  are  to  be  decided  is  the 
court  or  jury,  his  function  is  always  the  same.  He  has 
no  occasion  to  speak  except  that  he  may  explain,  convince, 
and  persuade ;  and  unless  his  oration  accomplishes  these 
objects,  he  has  occupied  the  time  of  the  tribunal  and 
expended  his  own  strength  in  vain. 

The  performance  of  this  function  by  the  advocate  involves 
the  exercise  of  faculties  whose  development  depends  almost 

3 


INTRODUCTION. 

entirely  upon  artificial  training.  With  whatever  capabilities 
nature  may  have  endowed  him,  the  methods  in  which  he 
must  employ  them  in  order  to  influence  the  minds  and  wills 
of  other  men  are  discoverable  neither  by  reasoning  nor  by 
intuition,  but  only  by  experience.  Fortunately  for  him, 
these  methods,  which  constitute  the  Art  of  Oratory,  have 
been  the  subject  of  investigation  from  the  dawn  of  civilized 
society,  and  many  of  the  rules  in  which  they  are  expressed 
are  more  venerable  than  those  of  any  other  science.  During 
the  ages  of  history  human  nature  has  undergone  no  essen- 
tial change.  The  impulses  which  determine  its  actions,  the 
mental  processes  by  which  those  impulses  are  aroused  and 
stimulated,  the  modes  in  which  the  orator  by  speech  and 
action  calls  these  mental  processes  into  effective  operation, 
remain  the  same  in  every  generation.  All  the  accumulated 
knowledge  of  the  past,  with  all  the  illustrious  examples  of  the 
application  of  that  knowledge,  thus  lie  before  the  orator  of 
our  day  for  his  guidance  and  instruction.  He  is  confused 
by  no  diversities  of  theory,  misled  by  no  conflicting  rules  of 
practice.  His  teachers,  ancient  and  modern,  are  in  harmony 
both  as  to  the  condition  of  intellect  and  will  into  which  he 
must  endeavor  to  lead  his  hearer,  and  as  to  the  methods  by 
which  that  condition  is  to  be  produced.  Nothing  is  wanting 
but  the  personal  zeal  and  perseverance  through  which  alone 
he  can  appropriate  these  stores  of  knowledge,  and  discipline 
his  faculties  into  the  spontaneous  adoption  of  these  methods 
to  which  all  the  successes  of  oratory  have  been  due. 

The  present  treatise  is  the  result  of  an  attempt  to  place 
within  the  reach  of  youthful  advocates  a  knowledge  of  the 
Science  and  the  Art  of  Oratory,  with  especial  reference  to  its 
forensic  use.  The  First  Part  is  devoted  to  a  statement  of  the 
general  methods  of  the  Art  of  Oratory,  with  the  reasons  upon 
which  they  rest  and  the  effects  which  they  are  calculated  to 
produce,  together  with  such  other  topics  as  are  introductory 
to  the  detailed  study  of  the  art.  In  the  Second  Part,  the 
4 


INTRODUCTION. 

various  processes  which  constitute  the  art  of  Forensic  Ora- 
tory are  described,  explained,  and  formulated  into  practical 
rules.  In  the  preparation  of  the  treatise  the  author  has  drawn 
from  every  source  available  to  him,  recognizing  the  fact  that 
in  the  nature  of  things  he  could  have  few  original  ideas  to 
offer,  and  that  his  task  would  be  fulfilled  if  he  presented  to 
his  readers  the  established  rules  and  doctrines  in  a  convenient 
and  intelligible  form. 


FORENSIC   ORATORY. 


PART    I. 

OF  THE  THEORY  AND   PRACTICE  OF  ORATORY 
IN   GENERAL. 


CHAPTER   I. 

OF  THE  NATURE  AND   PURPOSE   OF   ORATORY. 

§  1.     Purpose  of  Oratory  to  Move  the  Will. 

The  Art  of  Oratory  is  the  art  of  persuading  by  spoken 
words.  That  which  distinguishes  oratory  from  every  other 
species  of  discourse  is  its  purpose  of  persuading,  or  moving 
the  will.  Oratory  is  not  philosophy,  nor  is  it  poetry,  though 
in  its  demonstrations  it  sometimes  pursues  the  methods  of 
the  one,  and  in  its  appeals  employs  the  imagery  of  the 
other.  It  does  not  attain  its  end  when  it  instructs  nor 
when  it  pleases,  but  when  it  leads  the  hearer  to  perform 
some  proposed  physical  or  mental  act.  Its  province  is  to 
conquer  men  by  an  immediate  struggle,  and  to  control 
their  conduct,  not  by  the  application  of  exterior  force,  but 
by  exciting  and  directing  those  interior  forces  from  which 
all  voluntary  action  springs. 

§  2.     Will  Moved  by  the  Emotions. 

The  forces  which  directly  act  upon  and  move  the  will  are 
the  impulses  or  emotions  of  the  heart.  While  these  are  dor- 
mant the  will  remains  in  equilibrium,  and  volition  ceases. 
Every  activity  of  impulse  disturbs  this  equilibrium,  excites 

7 


§  2  FORENSIC   ORATORY. 

volition,  and,  in  the  absence  of  opposing  impulses,  determines 
its  direction  and  intensity.  When  active  impulses  conflict, 
volition  is  again  suspended,  until  the  strongest  impulse  over- 
comes the  rest,  and  thus  obtains  control  over  the  will. 

§  3.  Emotions  Excited  by  Ideas  Operating  on  the 
Mind. 
Impulses  are  engendered  in  the  heart  by  the  operation  of 
ideas  upon  the  mind.  Any  idea,  clearly  conceived  and  fully 
comprehended  by  the  intellect,  awakens  in  the  heart  certain 
emotions  which  naturally  correspond  to  that  idea.  When- 
ever these  emotions  dominate  the  will,  the  action  which 
expresses  that  idea  will  be  attempted,  and,  if  possible,  will 
be  performed.  Every  voluntary  act  thus  has  its  origin 
in  an  idea,  operating  upon  the  mind  of  the  actor,  and  pro- 
ducing in  his  heart  an  impulse  which  is  strong  enough  to 
move  his  will. 

§  4.  Energy  of  Emotions  Dependent  on  the  Energy 
with  which  Ideas  Operate  on  the  Mind. 
The  strength  of  an  emotion  depends  upon  the  energy  with 
which  its  genetic  idea  operates  upon  the  mind.  The  simple 
apprehension  of  an  idea,  though  it  awakens  impulse,  rarely 
arouses  it  into  controlling  power.  Other  ideas,  which  simul- 
taneously or  successively  present  themselves,  also  excite  their 
proper  impulses,  and  in  the  multitude  of  varying  emotions  the 
supremacy  of  one  becomes  impossible.  But  when  an  idea 
takes  entire  possession  of  the  mind,  absorbing  all  its  faculties, 
the  impulses  which  it  engenders  exclude  or  stifle  every  other 
impulse,  and  exercise  an  undivided  sovereignty  over  the  will. 

§  5.     Energy  of  Ideas   Dependent  on   the   Nature  of  the 

Idea,     the    Susceptibility    of     the     Hearer,    and 

the  Mode  of  Presentation. 

The  energy  with  which  an  idea  operates  upon  the  mind  is 

determined  partly  by  the  character  of  the  idea  itself,  partly 

8 


OF  THE  NATURE  AND  PURPOSE  OF  ORATORY.   §  6 

by  the  previous  condition  of  the  mind  on  which  it  operates, 
and  partly  by  the  earnestness  and  force  with  which  it  is  pre- 
sented. Some  ideas  excite  emotions  which  are  able  to 
control  the  will  only  when  it  is  wholly  free  from  contravening 
impulses,  while  other  ideas  arouse  emotions  so  intense  that 
every  hostile  impulse  perishes  at  once,  and  the  will  moves 
with  instantaneous  submission.  The  same  idea  impresses 
different  individuals  with  different  degrees  of  force,  according 
to  their  natural  or  acquired  susceptibilities.  The  energy  of 
an  idea,  however  weak,  may  be  indefinitely  augmented  by  its 
vivid  and  continuous  exhibition  to  the  mind,  while  ideas 
which  are  in  themselves  most  powerful  become  feeble  and 
ineffective  when  obscurely  presented  or  impotently  urged. 

§  6.     Oratory  Moves  the  Will  by  Presenting  the   Ideas 
Calculated  to  Excite  those  Emotions  'which  ■will 
Produce  the  Act  desired. 
In  its  endeavors  to  control  the  acts  of  men,  oratory  attacks 
the  will  through  these  ideas  and  impulses.     Having  in  view 
a  definite  end,  and  purposing  to  attain  that  end  through  the 
voluntary  operations  of  the  actor,  it  singles  out  the  impulses 
by  which  his  will  can  most  effectively  be  moved  in  the  direc- 
tion of  the   act  proposed,  and  the  ideas  by  which  those 
impulses    can   be    most    speedily    and    vigorously    excited. 
These  impulses  it  then  arouses  and  inflames  by  vividly  and 
forcibly  presenting  those  ideas  to  his  mind,  until  opposing 
impulses  are  overcome,  his  will  is  subjugated,  and  his  per- 
formance of  the  act  secured. 


§  7  FORENSIC   ORATORY. 


CHAPTER  II. 

OF  THE   LIMITATIONS  OF  ORATORY. 

§  7.  Oratory  can  Employ  only  Noble  Ideas  and  Emotions. 
In  its  employment  of  ideas  and  impulses  oratory  is  limited 
by  its  own  nature,  and  by  the  intellectual  and  moral  charac- 
teristics of  its  auditors.  True  oratory  counts  among  its 
lawful  weapons  only  those  noble  impulses  which  are  born  of 
just  and  excellent  ideas.  With  the  base  passions  which  are 
the  progeny  of  low  and  sensuous  ideas  it  has  no  sympathy, 
no  common  aim.  It  recognizes  that  the  emancipation  of 
the  will  from  the  latter  and  its  entire  subjugation  to  the  former 
is  the  one  object  of  the  discipline  of  life,  and  the  sole  ultimate 
benefit  which  social  forces  can  confer  upon  mankind.  Itself 
the  most  potent  of  these  forces,  it  can  never,  for  the  sake  of 
temporary  ends,  promote  the  sovereignty  of  passion,  or  urge 
the  will  toward  vicious  or  degrading  actions.  This  is  espe- 
cially true  of  forensic  oratory.  The  advocate  is  the  minister 
of  the  law,  the  instrument  and  guardian  of  justice.  In  his 
assertion  of  the  right,  in  his  defence  against  the  wrong, 
passion  is  always  his  antagonist,  and  not  his  ally.  So  far 
from  evoking  it  that  he  may  trade  upon  the  baseness  of  his 
hearers,  it  is  his  duty  to  deliver  them,  at  least  for  the  time 
being,  from  its  thraldom,  that  with  unclouded  minds  they 
may  perceive  the  truth,  and  with  unfettered  wills  may 
zealously  pursue  it. 

§  8.    Oratory  can  Employ  only  Ideas  Suited  to  the  Hearers. 

The  intellectual  and  moral  characteristics  of  its  hearers 
narrow  still  further  the  resources  of  oratory.     An  audience  is 
not  a  group  of  empty  vessels  into  which  the  orator  can  pour 
IO 


OF  THE   LIMITATIONS  OF  ORATORY.         §  IO 

his  thought,  certain  that  it  will  there  retain  its  purity  and 
power.  On  the  contrary  their  minds  are  occupied  already 
with  ideas  which  form  a  solvent  for  every  new  idea  that  may 
be  presented  to  them,  and  their  hearts  are  pregnant  with 
emotions  which  have  hitherto  controlled  and  still  control 
their  wills.  No  new  idea  can  be  received  into  and  operate 
with  energy  upon  their  minds  unless  it  is  consistent  with 
these  preconceived  ideas,  nor  can  their  impulses  be  roused 
unless  the  thoughts .  suggested  by  the  orator  are  those  to 
which  their  hearts  instinctively  respond.  The  orator  must, 
therefore,  always  speak  to  these  intellectual  and  moral  char- 
acteristics of  his  hearers,  and  on  the  basis  of  these  previous 
ideas  and  impulses  erect  the  fabric  of  his  demonstration  and 
appeal,  or  he  will  have  no  right  nor  reason  to  expect  success. 

§  9.     Selection  of   Suitable  Ideas   Difficult  for  Want  of 
Knowledge  of  the  Audience. 

Two  serious  difficulties  here  confront  the  orator.  The 
first  arises  from  his  ignorance  of  the  intellectual  and  moral 
characteristics  of  his  auditors.  No  man  can  ascertain,  except 
by  long  and  intimate  companionship,  the  secret  thoughts  and 
impulses  of  another,  and  even  then  some  special  idiosyncra- 
sies will  be  so  rarely  manifested  as  to  remain  substantially 
unknown.  The  hearer  is  thus  always,  to  some  extent,  an 
uncertain  quantity.  However  diligent  the  inquiry  concern- 
ing him,  however  close  the  observation  of  his  habits  and 
peculiarities,  some  preconceived  idea,  some  ruling  impulse, 
will  escape  detection,  and  leave  the  orator  in  constant  danger 
of  failing  to  excite  his  interest,  if  not  also  of  arousing  his 
hostility. 

§  10.    Selection  of  Suitable  Ideas  Difficult  from  Varied 
Character  of  the  Audience. 

The  second  and  more  formidable  difficulty  arises  when  the 
orator   addresses   an   assemblage   composed   of  individuals 

II 


§   10  FORENSIC   ORATORY. 

whose  intellectual  and  moral  characteristics  are  dissimilar.  To 
move  this  mass  of  men,  each  individual  among  them  must  be 
moved.  The  ideas  which  the  orator  presents  must  operate 
with  absorbing  energy  on  every  mind,  and  awake  controlling 
impulses  in  every  heart.  Yet  such  are  their  diversities  that 
an  idea  directed  to  the  distinctive  thoughts  and  impulses  of 
one  can  rarely,  in  the  same  manner  and  to  the  same  degree, 
affect  another.  In  such  an  audience  there  is  no  collective 
mind  which  oratory  can  approach  unless  their  various  pecu- 
liarities are  temporarily  eliminated.  Like  other  fractions, 
these  individuals  can  never  be  combined  into  an  active 
integer  until  they  have  been  first  reduced  to  a  common 
denominator  of  homogeneous  ideas  and  dispositions. 


12 


OF  THE  FIELD  AND   DIVISIONS   OF  ORATORY.      §   II 


CHAPTER  III. 

OF  THE   FIELD   AND    DIVISIONS   OF  ORATORY. 

§  11.  Oratory  Adapts  itself  to  its  Limitations  by  Em- 
ploying only  Universal  Ideas  and  Emotions. 
Fortunately  for  the  success  of  oratory,  although  its  limita- 
tions cannot  be  removed,  the  difficulties  which  create  them 
may  be  avoided.  There  are  in  human  nature  certain  funda- 
mental principles  of  thought  and  action ;  certain  universal 
ideas  by  which  men  measure  the  truth  or  falsehood,  the 
value  or  insignificance,  of  whatever  other  ideas  may  be  pre- 
sented to  them  ;  certain  universal  impulses  which  are  the  same 
in  all  men  and  are  constant  in  every  man,  and  which  under 
uniformity  of  circumstances  result  in  a  substantial  uniformity 
of  conduct.  The  truth  of  any  particular  idea  is  conceded 
the  moment  it  is  seen  to  be  identical  with,  or  included  in, 
any  of  these  universal  ideas  ;  and  the  will  moves  toward  any 
action  as  soon  as  the  mind  recognizes  it  as  belonging  to  that 
class  of  actions  to  which  these  universal  impulses  naturally 
tend.  It  is  in  the  field  of  these  fundamental  principles  that 
the  orator  must  labor.  As  he  cannot  know  all  the  peculiar 
characteristics  of  his  different  auditors,  and  as  if  he  did 
know  he  could  not  accommodate  his  utterance  to  the  various 
characteristics  of  a  numerous  auditory,  he  must  confine  him- 
self to  that  which  he  can  know,  and  which  resides  alike  in 
all.  He  must  arouse  those  universal  impulses,  which  in  all 
men  impel  the  will  toward  the  contemplated  act,  by  identify- 
ing the  particular  ideas  embodied  in  that  act  with  those 
ideas  which  in  all  men  excite  these  universal  impulses.  He 
must  address  himself  to  the  humanity,  as  distinguished  from 

13 


§   II  FORENSIC   ORATORY. 

the  individuality,  of  his  hearers,  at  once  vivifying  and  con- 
trolling their  thoughts,  their  emotions,  and  their  wills. 

§  12.  Universal  Ideas  and  Emotions  Spring  from  the 
Tendency  of  Human  Nature  toward  Perfection. 
That  fundamental  principle,  out  of  which  all  noble  im- 
pulses arise,  is  the  tendency  of  human  nature  toward  perfec- 
tion. Every  man  naturally  and  necessarily  inclines  toward 
that  which  seems  to  him  to  be  the  highest  good.  The  law 
of  humanity  is  the  law  of  aspiration  to  and  movement  toward 
a  greater  excellence,  a  clearer  light.  Nations  and  individuals 
alike  intuitively  struggle  to  obey  this  law,  and  to  proceed 
from  present  good  to  an  immediate  better  and  a  future  best. 

§  13.  Tendency  toward  Perfection  Impels  Man  to  Do 
his  Duty,  to  Become  Virtuous,  and  to  Attain 
Happiness. 
Perfection  is  predicable  of  human  nature  as  to  its  action, 
as  to  its  character,  and  as  to  its  attainment.  A  man  is  per- 
fect as  to  action  when  he  fulfils  his  duty ;  as  to  character, 
when  his  predominant  ideas  and  impulses  are  pure  and  vir- 
tuous ;  as  to  attainment,  when  he  possesses  the  highest  hap- 
piness which  human  nature  is  able  to  enjoy.  And  thus  in 
actual  life  the  fundamental  tendency  toward  perfection  mani- 
fests itself  in  three  subordinate  tendencies :  the  tendency 
toward  duty,  the  tendency  toward  virtue,  and  the  tendency 
toward  happiness.  These  three  subordinate  tendencies  ex- 
ist in  all  the  members  of  the  human  race.  There  is  in  every 
man  a  natural  disposition  to  do  that  which  he  knows  to  be 
his  duty.  However  weak  this  disposition  may  be,  however 
insufficient  to  overcome  the  obstacles  which  hinder  and  the 
temptations  which  seduce  him,  it  is  forever  present  in  him, 
and  often  needs  only  the  encouragement  and  support  of 
some  exterior  will  to  enable  it  to  triumph.  There  is  in  every 
man  a  natural  disposition  toward  virtue.     His  actual  igno- 

14 


OF   THE   FIELD   AND   DIVISIONS   OF   ORATORY.     §   1 4 

ranee,  his  moral  depravity,  his  habitual  vices,  may  indicate 
the  measure  of  his  failure  to  attain  it  and  the  influence  which 
a  false  training  or  corrupt  associates  have  exerted  over  him, 
but  in  the  depths  of  his  interior  nature  this  disposition  still 
survives,  and,  if  aroused  and  sedulously  cultivated,  displays 
its  saving  power.  There  is  in  every  man  a  natural  disposi- 
tion toward  happiness.  His  ideas  of  its  constituent  elements 
may  be  erroneous,  his  efforts  to  obtain  it  may  be  unsuccess- 
ful, but  it  is  still  the  glittering  prize  which  allures  him  on 
through  all  the  schemes  and  struggles  of  his  life,  and  the 
disposition  to  secure  it  is  the  force  which  determines  both 
his  character  and  conduct. 

§  14.  The  Universal  Ideas  of  Duty,  Virtue,  and  Happi- 
ness Excite  Certain  Universal  Emotions. 
These  natural  dispositions  render  the  heart  susceptible  to 
certain  impulses,  each  of  which  corresponds  to  some  one  of 
the  many  forms  in  which  the  ideas  of  duty,  virtue,  and  hap- 
piness are  presented  to  the  mind.  The  idea  of  duty  yet  to 
be  fulfilled  awakens  zeal ;  of  duty  heretofore  performed,  com- 
placency ;  of  duty  which  another  has  omitted,  anger ;  of 
duty  as  discharged  by  another,  approbation.  The  idea  of 
virtue  as  an  attribute  of  character  engenders  admiration  ;  as 
exemplified  in  individuals,  good  will,  esteem,  friendship,  or 
even  love  for  them  and  emulation  of  their  excellence ;  as 
contrasted  with  vice,  abhorrence  of  the  vice  itself  and  aver- 
sion or  contempt  toward  those  in  whose  character  depravity 
is  manifested.  The  idea  of  happiness  as  possible  begets 
courage,  desire,  and  hope ;  as  unattainable,  despair ;  as 
already  possessed,  joy ;  as  derived  from  others,  gratitude  ; 
as  endangered,  fear ;  as  denied  to  others,  pity  ;  as  prevented 
or  destroyed  by  others,  indignation.  These  are  the  universal 
impulses  to  which  all  men  are  subject.  These  are  the 
weapons  of  the  orator  to  which  no  human  heart  can  ever 
be  invulnerable. 

15 


§   15  FORENSIC   ORATORY. 

§  15.    Every  Voluntary  Act  Springs  from  One  or  More  of 
these  Ideas  and  Emotions. 

The  ideas  by  which  the  orator  endeavors  to  arouse  these 
impulses  are  determined  by  the  nature  of  the  contemplated 
act.  A  voluntary  act  may  spring  from  one  or  many  of  these 
impulses,  and  embody  one  or  all  of  these  ideas.  An  act 
which  is  considered  only  as  a  duty  to  be  done  presents  a  single 
idea  which  excites  a  single  impulse,  zeal.  But  if  the  same  act 
is  a  duty  which  was  hitherto  neglected,  or  tends  to  virtue  or 
to  happiness,  or  has  already  produced  excellence  and  good  to 
others,  or  if  its  omission  has  been  followed  by  depravity  or 
wretchedness,  all  these  ideas  and  their  resulting  impulses  may 
be  combined  to  move  the  hearer  to  perform  the  act.  The  re- 
sources thus  presented  to  the  orator  are  numerous  and  varied. 
In  nearly  every  form  of  oratory  the  act  embodies  several 
ideas,  and  affords  opportunity  for  stirring  many  impulses 
whose  united  force  can  be  concentrated  upon  the  will. 

§  16.  Voluntary  Acts  Elicited  by  Oratory  are  of  Two 
Classes,  Religious  and  Political. 
The  nature  of  those  acts  whose  performance  oratory 
endeavors  to  secure  depends  chiefly  upon  the  place  they 
occupy  in  the  relations  of  the  actor  to  society  and  to  his 
Creator.  Every  man  to  whom  oratory  at  any  time  addresses 
itself  is  a  part  of  two  great  systems,  the  religious  and  the  polit- 
ical. In  the  religious  order,  duty  is  obedience  to  reason,  to 
natural  law,  and  to  the  revealed  will  of  God  ;  virtue  is  moral 
perfection  ;  happiness  is  present  peace  and  future  glory.  In 
the  political  order,  duty  is  legal  obligation ;  virtue  is  civic 
excellence  ;  and  happiness  is  municipal  or  national  welfare 
and  prosperity.  An  act  regarded  as  a  duty  to  the  state  thus 
presents  ideas  entirely  different  from  those  embodied  in  the 
same  act  when  considered  as  a  duty  toward  God,  and  the 
motives  which  impel  toward  it  as  the  one  may  have  no  place 
in  the  production  of  it  as  the  other.  The  spheres  of  political 
16 


OF   THE    FIELD  AND   DIVISIONS   OF   ORATORY.     §   I J 

and  religious  oratory  are  thus  widely  different,  and  though 
attacking  the  will  through  the  same  impulses  address  the 
auditor  with  wholly  different  ideas  and  for  entirely  different 
purposes. 

§  17.  Divisions  of  Oratory :  Judicial,  Demonstrative, 
Deliberative. 
From  the  distinction  between  the  three  subordinate  dis- 
positions, in  which  the  universal  tendency  of  human  nature 
toward  perfection  manifests  itself,  arises  the  division  of  oratory 
into  Judicial,  Demonstrative,  and  Deliberative  Oratory.  Judi- 
cial oratory  relates  to  duty.  It  refers  only  to  the  present 
moment,  and  endeavors  to  secure  the  performance  of  a 
present  act  by  enforcing  present  obligations.  It  excludes 
the  ideas  of  praise  and  blame,  of  reward  and  penalty,  and 
urges  the  discharge  of  duty  simply  as  duty,  and  without 
reference  to  consequences.  Demonstrative  or  panegyrical 
oratory  relates  to  virtue.  It  regards  the  past,  and  rehearses 
the  excellence  and  achievements  of  its  subject  that  it  may 
win  for  him  the  honor  and  the  imitation  of  its  hearers. 
Deliberative  oratory  relates  to  happiness.  It  contemplates 
the  future,  and  urges  the  performance  of  an  act,  not  on  the 
ground  of  obligation  or  of  merit,  but  as  productive  of  such 
consequences  as  tend  to  personal  or  social  welfare.  The 
differences  between  these  three  divisions  are  essential,  and 
were  recognized  even  in  the  beginning  of  the  art  of  oratory. 
And  though  it  is  consistent  both  with  nature  and  the  rules 
of  art  that  in  the  same  oration  all  these  different  forms  may 
be  employed,  yet  that  one  which  gives  to  the  oration  its 
distinctive  character  must  never  lose  pre-eminence.  For 
every  true  oration  is  a  unit.  It  is  an  effort  devoted  to  the 
accomplishment  of  a  single  object,  and  animated  by  a  single 
purpose,  which  concentrates  within  itself  and  endows  with  its 
own  attributes  all  the  material  it  uses,  from  whatever  source 
derived,  so  that  with  its  various  weapons  it  may  strike  a 
single  but  decisive  blow. 

2  17 


§   1 8  FORENSIC   ORATORY. 


CHAPTER   IV. 

OF  THE  ART  OF  ORATORY. 

§  18.  Art  of  Oratory  Consists  of  Two  Processes,  Con- 
vincing and  Persuading. 
Oratory,  whatever  be  its  form,  proposes  to  itself  two 
objects  :  to  convince  the  hearer  that  the  contemplated  act 
is  his  duty,  or  will  promote  his  virtue  or  his  happiness ;  to 
urge  upon  him  the  ideas  which  are  embodied  in  that  act 
with  such  force  as  to  arouse  in  him  a  controlling  impulse 
to  perform  it.  The  methods  by  which  it  accomplishes  these 
objects  constitute  the  Art  of  Oratory. 

§  19.  Process  of  Convincing :  First  Step  to  Define  the 
Proposed  Act. 
In  order  to  convince  the  hearer  that  the  proposed  act  is 
his  duty,  or  that  it  will  result  in  virtue  or  in  happiness,  it 
is  first  necessary  to  create  within  his  mind  a  clear  concep- 
tion of  the  nature  of  that  act  itself.  No  proposition  can 
be  demonstrated  unless  the  several  members  of  which  it  is 
composed  are  already  fully  comprehended.  The  identity  of 
the  particular  ideas  embodied  in  the  act  with  one  of  the 
universal  ideas  which  exist  already  in  the  mind  cannot  be 
established  until  those  particular  ideas  have  been  completely 
and  intelligibly  denned.  Definition,  therefore,  must  precede 
demonstration.  If  the  proposed  act  is  to  be  identified  with 
duty,  its  elements  must  be  described,  and  the  nature  of  its 
obligations  must  be  precisely  stated.  If  its  consequences 
are  to  be  identified  with  happiness  or  virtue,  its  effects  on 
character  or  condition  must  be  accurately  delineated.  If 
the  nature  of  the  act  or  of  its  consequences  depends  upon 
18 


OF   THE   ART   OF   ORATORY.  §  21 

attendant  circumstances,  these  circumstances  also  must  be 
narrated,  and  their  relation  to  the  act  must  be  explained. 
If  its  nature  or  results,  or  its  attendant  circumstances,  are 
doubtful  or  disputed,  the  precise  points  of  doubt  or  con- 
troversy, and  the  modes  of  their  determination,  must  be 
indicated.  In  a  word,  the  ideas  embodied  in  and  necessa- 
rily connected  with  the  act  must  be  so  fully  and  particularly 
defined  within  the  mind  of  the  hearer  that  he  perceives  them 
as  clearly  and  as  comprehensively  as  does  the  orator  himself. 

§  20.  Process  of  Convincing :  Definition  a  Species  of 
Demonstration. 
Definition  is  not  only  a  prerequisite  to  demonstration  ;  it 
is  itself  a  kind  of  demonstration.  The  correct  understanding 
of  any  question  goes  very  far  toward  its  correct  determination. 
Such  is  the  power  of  truth  over  the  mind  that  its  mere  state- 
ment elicits  a  certain  assent  and  acknowledgment.  The 
exhibition  of  a  particular  idea  to  the  intellect  at  once  excites 
to  operation  the  universal  idea  in  which  it  is  included.  To 
perceive  an  act  in  the  light  of  its  obligations  thus  often 
produces  the  conviction  that  it  is  a  duty.  To  apprehend 
the  relations  of  its  consequences  to  character  or  condition 
may  alone  satisfy  the  mind  that  its  performance  promotes 
happiness  or  virtue.  And  even  when  definition  does  not  also 
demonstrate,  the  pleasure  which  the  hearer  naturally  expe- 
riences on  finding  himself  master  of  the  idea  of  the  orator 
inevitably  predisposes  him  to  yield  to  the  actual  demonstra- 
tion that  immediately  follows. 

§  21,     Process     of     Convincing :      Definition     Impossible 

unless  the  Orator  himself  Comprehends  the  Act 

Defined. 

That  the  orator  may  define  the  proposed  act  to  the  minds 

of  others  he  must  himself  have  fully  comprehended  it.     No 

one  can  give  that  which  he  does  not  possess,  and  worse  than 

19 


§  21  FORENSIC   ORATORY. 

useless  is  the  labor  of  an  orator  whose  own  ideas  are  involved 
in  confusion  and  obscurity.  What  he  would  now  do  for  his 
auditors  he  must  have  done  already  for  himself  by  an  exhaust- 
ive research  and  a  thorough  classification.  The  perfect  and 
precise  conception  in  his  own  mind  of  the  nature  of  the  act 
which  he  desires  his  hearers  to  perform,  communicated  to 
them  in  language  too  plain  and  simple  to  be  misunderstood, 
is  the  indispensable  prerequisite  to  any  demonstration  that 
the  act  is  one  of  obligation,  or  would  improve  their  character 
or  their  condition. 

§  22.  Process  of  Convincing:  Second  Step  to  De- 
monstrate that  the  Proposed  Act  Ought  to  be 
Performed. 
To  satisfy  the  hearer  that  the  proposed  act  ought  to  be 
performed  is  the  work  of  demonstration.  It  consists  in  the 
comparison  of  the  particular  ideas  embodied  in  the  act  with 
the  ideas  of  duty,  virtue,  or  happiness  universally  existing  in 
the  human  mind.  Thus  in  religious  oratory  an  act  is  shown 
to  be  a  duty  by  comparing  it  with  those  rules  of  action  which 
all  men  recognize  as  dictated  by  reason,  by  the  law  of  nature, 
or  by  the  revealed  will  of  God.  And  in  political  oratory  the 
consequences  of  an  act  are  proved  to  be  identical  with  happi- 
ness by  comparing  them  with  those  conditions  which  are  the 
acknowledged  elements  of  civic  welfare.  When  these  par- 
ticular ideas  have  been  successfully  defined  and  the  definition 
is  uncontroverted,  and  when  the  hearer  is  conscious  of  the 
nature  and  scope  of  these  universal  ideas,  the  act  of  compari- 
son constitutes  the  entire  demonstration,  for  then  he  sees  at 
once  that  the  universal  idea  embraces  the  particular,  and 
consequently  that  it  is  his  duty  or  his  interest  to  perform  the 
act.  If  the  particular  ideas  are  in  dispute,  and  it  is  doubtful 
whether  the  act  proposed  is  of  the  nature  which  the  orator 
describes,  as  is  often  the  case  in  forensic  oratory,  he  must 
corroborate  his  assertions  with  sufficient  proof.  If  the  uni- 
20 


OF  THE  ART   OF   ORATORY.  §  24 

versal  ideas,  although  existing  in  the  mind  of  the  auditor, 
are  not  clearly  recognized  by  him  at  the  time  as  infallible 
standards  of  comparison,  they  must  be  stimulated  and  devel- 
oped until  they  are  distinct  enough  to  serve  him  as  tests  of 
the  truth  of  the  particular  idea. 

§  23.    Process  of  Convincing:   Modes  of  Demonstration 

must  be  Simple. 
The  methods  by  which  the  orator  thus  identifies  the  ideas 
embodied  in  the  act  with  the  fundamental  idea  in  the  mind 
of  the  hearer  are  necessarily  of  the  simplest  character.  The 
demonstration  is  to  be  heard,  not  read.  Whatever  it  accom- 
plishes it  must  accomplish  during  the  instant  that  it  falls  upon 
the  ear.  The  auditor  has  no  opportunity  to  investigate  its 
truth,  to  meditate  on  its  results,  or  to  elucidate  its  obscuri- 
ties. While  the  orator  is  speaking  it  does  its  work,  or  leaves 
it  undone  forever.  Hence  it  must  be  so  perfect  and  intelligi- 
ble as  to  involve  no  labor  on  the  part  of  the  hearer,  and  must 
present  itself  before  his  understanding  in  such  clear  and  con- 
clusive arguments  that  he  assents  to  it  without  delay.  It 
must  employ  those  attributes  of  the  universal  idea  which 
are  most  easily  comprehended,  and  the  exhibition  of  which 
beside  those  of  the  contemplated  act  will  at  once  manifest 
their  complete  identity. 

§  24.     Process  of  Convincing :    Modes  of  Demonstration 
must  be  Such  as  the  Hearer  is  Accustomed  to 
Employ. 
These  methods,  moreover,  must  be  the  same  which  the 
auditor  himself  is  accustomed  to  employ.     Different  classes 
of  men  apply  these  universal  standards  to  a  proposed  act  in 
different   ways,    arriving  at  the  same  result,  but  using  the 
same  instruments  in  different  modes.     These  habitual  meth- 
ods of  demonstration  must  be  discovered  and  adopted  by  the 
orator.     The  particular  ideas  which  he  selects  as  character- 

21 


§  24  FORENSIC   ORATORY. 

izing  the  act  must  be  those  which  his  audience  would  perceive 
in  the  act  if  making  the  examination  for  themselves.  Those 
elements  of  the  universal  idea  with  which  he  measures  his 
particular  ideas  must  be  the  same  which  they  would  regard  as 
standards  in  deciding  according  to  their  unaided  judgments. 
To  establish  by  proof  that  the  universal  idea  possesses  certain 
attributes,  and  then  to  use  such  attributes  as  arguments  in 
favor  of  the  contemplated  act,  is  a  process  that  confuses  and 
does  not  convince.  On  the  contrary,  such  forms  of  this  idea 
as  are  already  familiar  to  the  hearer,  and  naturally  arise  within 
his  mind  whenever  questions  of  duty,  happiness,  or  virtue 
are  presented  to  him,  furnish  the  proper  and  the  only  profit- 
able arguments,  all  others  being  equally  unintelligible  and 
inconclusive. 

§  25.     Process  of  Convincing :  Philosophical  and  Mathe- 
matical   Demonstrations   Rarely  Permissible   in 
Oratory. 
In  general,  therefore,  philosophical  and  mathematical  dem- 
onstrations  have  no   place  in  oratory,   their   processes  not 
only  imposing  severe  labor  on  the  memory  of  the  hearer,  but 
demanding  the  quickest  perceptions  and  the  strongest  powers 
of  reasoning.     Such  demonstrations  not  merely  distract  atten- 
tion from  the  real  object  of  the  orator;   they  also  puzzle 
even  the  most  attentive  of  his  auditors,  and  produce  in  them 
a  sense  of  disappointment  which  is  unfavorable  to  ultimate 
success. 

§  26.     Process  of  Convincing :   Modes  of  Demonstration 

Suitable  to  Oratory :  Argumentum  ad  Hominem. 

One  of  the  most  effective  forms  of  oratorical  argument  is 

the  argumentum  ad  hominem.     This  is  a  direct  appeal  to  the 

consciousness  of  the  hearer.     It  turns  his  thoughts  to  the 

contemplation  of  the  universal  idea  as  it  exists  in  his  own 

mind,  and  points  out  to  him  its  attributes  as  familiar  and 

22 


OF  THE  ART   OF   ORATORY.  §  27 

unchallenged  principles.  It  does  not  endeavor  to  increase 
his  knowledge  otherwise  than  by  suggesting  to  him  that 
which  is  supposed  to  be  self-evident,  and  leading  him  to 
compare  his  ideas  of  the  act  with  the  general  idea  as  thus 
discerned.  In  this  argument  both  the  particular  and  the  uni- 
versal ideas  are  assumed  to  be  clearly  understood,  and  the 
question  of  identity  between  them  alone  to  remain  undeter- 
mined. It  is,  therefore,  the  proper  argument  in  all  cases 
where  the  act  and  the  standard  of  comparison  are  already 
fully  recognized,  and  the  demonstration  is  to  be  com- 
pleted by  comparison  alone. 

§  27.  Process  of  Convincing :  Modes  of  Demonstration 
Suitable  to  Oratory  :  Examples. 
Another  valuable  form  of  argument  is  that  drawn  from 
examples.  Men  naturally  rely  on  the  experience  of  others 
as  a  safe  guide  for  themselves,  and  if  an  act  has  been  per- 
formed by  one  whom  they  consider  as  worthy  to  be  imitated, 
or  has  produced  in  other  men  the  happiness  or  virtue  predi- 
cated of  its  consequences  by  the  orator,  they  are  inevitably 
influenced  by  these  examples  to  regard  the  act  as  of  the 
character  which  the  orator  asserts.  This  form  of  argument 
is  an  act  of  comparison  between  the  act  proposed  and  the 
universal  idea.  It  assumes  that  the  auditor  already  under- 
stands in  what  duty,  virtue,  and  happiness  consist.  It 
exhibits  to  him  an  actual  instance  in  which  these  ideas  have 
been  realized  by  the  performance  of  the  proposed  act,  leaving 
him  to » conclude  that  its  performance  by  himself  would  be 
attended  with  the  same  results.  It  is,  therefore,  a  proper 
argument  for  cases  in  which  the  attributes  of  the  universal 
idea  are  definitely  established,  but  where  the  characteristics 
of  the  contemplated  act,  and  their  identity  with  those  attri- 
butes, are  doubtful  or  obscure. 

23 


§  28  FORENSIC   ORATORY. 

§  28.  Process  of  Convincing :  Modes  of  Demonstration 
Suitable  to  Oratory :  Authority. 
The  argument  from  authority  is  also  an  effective  one  in 
oratory.  The  mind  instinctively  yields  to  the  authority  of 
those  who,  on  account  of  their  superior  wisdom,  public 
services,  or  peculiar  excellence,  have  attained  a  high  position 
among  their  fellow  men.  The  mere  dicta  of  such  individuals 
become  often  a  most  powerful  argument,  especially  when 
these  utterances  have  been  accepted  by  many  generations  as 
infallible  authority.  The  minds  of  most  men  receive  such 
lessons  of  the  past  with  great  eagerness,  and  derive  from 
them  the  most  permanent  and  vivid  of  their  impressions. 
This  form  of  argument  embraces  the  entire  field  of  demon- 
stration. It  is,  in  effect,  the  assertion,  on  the  part  of  the 
person  whose  authority  is  cited,  that  he  has  examined  the 
ideas  embodied  in  the  proposed  act  and  the  elements  which 
constitute  the  universal  idea,  and  has  discovered  that  they 
are  identical.  Hence  its  great  value  where  the  act  itself  is 
difficult  of  explanation,  and  must  be  identified  with  the  less 
familiar  attributes  of  the  universal  idea. 

§  29.    Process   of  Convincing  :    Demonstration  must  be 
Brief. 

Whatever  form  of  argument  the  orator  adopts,  the  argu- 
ment itself  must  be  not  only  clear  and  simple ;  it  must  be 
also  brief.  The  mind  taught  through  the  ear  must  be  taught 
quickly,  or  the  attention  flags,  the  thread  of  thought  is  broken, 
and  the  force  of  the  entire  argument  is  destroyed.  An  argu- 
ment must  not  efface  its  predecessor  by  mere  weight  of  words, 
but,  one  following  another  in  distinct  but  swift  succession, 
each  must  add  to  the  power  and  the  conclusiveness  of  the 
demonstration,  until  it  terminates  in  an  impregnable  convic- 
tion that  the  contemplated  act  should  be  performed. 

24 


OF   THE   ART   OF   ORATORY.  §  32 

§  30.     Process  of  Persuading  :   its  Necessity. 

Definition  and  Demonstration  develop,  in  the  mind  of  the 
hearer,  the  ideas  embodied  in  the  contemplated  act,  and 
identify  them  with  the  universal  idea  of  duty,  virtue,  or 
happiness.  They  thus  convince  him  that  this  act  is  his  duty 
or  will  result  in  happiness  or  virtue,  and  produce  within  his 
heart  an  impulse  to  perform  it.  But  to  convince  is  not 
always  to  persuade ;  and  many  influences  may  concur  to 
prevent  this  impulse  and  idea  from  finding  an  expression  in 
external  acts.  The  purpose  of  oratory  is  not  accomplished 
unless  this  idea  is  so  presented  that  it  takes  entire  possession 
of  the  mind,  and  operates  upon  it  with  such  energy  as  to 
arouse  emotions  which  control  the  will. 

§  31.  Process  of  Persuading  :  Involves  the  Entire 
Oration. 

This  supreme  purpose  of  the  orator  animates  and  charac- 
terizes the  entire  oration.  From  the  moment  he  appears 
before  his  auditors,  all  his  efforts  are  directed  to  this  end. 
Every  posture  which  he  assumes,  every  thought  which  he 
presents,  every  word  which  he  employs,  every  modulation  of 
his  voice,  every  look  and  gesture,  has  for  its  single  object  the 
increase  of  that  energy  with  which  the  idea  already  operates 
upon  the  mind  of  his  hearer,  and  the  strengthening  of  the 
impulses  which  move  him  toward  the  contemplated  act. 
Even  in  the  most  formal  portions  of  his  definition  and  his 
argument,  his  language  and  his  manner  are  governed  by  the 
same  design,  for  he  defines  and  demonstrates  only  that  he 
may  persuade. 

§  32.  Process  of  Persuading  :  Intended  to  Awake  Atten- 
tion, Excite  Interest,  and  Compel  Determina- 
tion. 

The  method  by  which  the  orator  causes  an  idea  to  take 
entire  possession  of  the  minds  of  his  auditors  is  indicated  by 

25 


§  32  FORENSIC   ORATORY. 

the  character  of  the  result  which  he  endeavors  to  accom- 
plish. At  the  moment  of  their  announcement  to  the  hearers, 
the  ideas  embodied  in  the  proposed  act  are  either  familiar  or 
unfamiliar  to  them,  and  their  dispositions  toward  it  are  either 
favorable,  or  unfavorable,  or  indifferent.  The  problem  of  the 
orator  is  to  remove  them  from  this  state  of  entire  or  partial 
ignorance,  indifference,  hostility,  or  ineffectual  good  will,  to  a 
state  of  perfect  knowledge  and  favorable  determination.  This 
process  is  necessarily  a  gradual  one.  Its  first  step  is  the  in- 
corporation of  the  idea  embodied  in  the  act  into  the  existing 
ideas  of  the  hearers,  awakening  their  interest,  removing  preju- 
dices, and  making  the  idea  consciously  their  own.  It  then 
exhibits  the  idea  to  them  in  various  lights,  —  in  its  sources,  in 
its  consequences,  in  its  relations,  in  every  form  by  which  the 
impression  already  made  can  be  intensified, — until  their  entire 
attention  centres  on  the  act,  and  every  impulse  of  their  hearts 
tends  to  its  instant  execution.  Proceeding  thus  step  by  step, 
and  making  each  advantage  which  he  gains  a  basis  for  still 
further  operations,  he  progresses  steadfastly  toward  his  goal, 
carrying  the  hearers  from  one  stage  of  persuasion  to  another, 
until  from  auditors,  who  at  the  best  were  not  enemies,  he  has 
converted  them  into  active  and  determined  friends. 

§  33.    Process  of  Persuading :  Orator  must  Identify  Him- 
self with  his  Hearers. 
In  order  to  remove  his  hearers  from  their  present  attitude 
toward  the  contemplated  act  to  one  which  will  insure  their 
endeavor  to  perform  it,  the  orator  must  identify  himself  with 
them,  and  accompany  them  in  their  transition  to  the  state 
desired.     In  vain  will  he  summon  them,  from  some  distant 
height  of  thought  or  feeling,  to  follow  his  direction  and  accept 
his  conclusions.     He  must  descend  to  them  in  their  ignorance 
or  opposition,  and  lead  them  up  to  the   summit  of  truth 
and  duty.     He  must  unite   himself  with  them,  make  their 
thought  his  thought,  their  impulses  his*  impulses,  even  their 
26 


OF  THE   ART   OF   ORATORY.  §  34 

prejudices  his  prejudices,  that  he  may  graft  his  thought  on 
theirs,  mould  their  impulses  into  his,  and  efface  their  preju- 
dices with  his  truth.  The  orator  who  stands  aloof  from  his 
audience,  who  regards  them  as  his  pupils  or  his  subjects 
rather  than  his  comrades,  who  discusses  questions  in  a 
manner  satisfying  to  himself  but  without  adaptation  to  their 
tastes  and  dispositions,  may  instruct  and  please,  may  perhaps 
convince,  but  never  can  persuade. 

§  34.  Process  of  Persuading :  Sufficient  for  Orator  to 
Identify  Himself  with  General  Characteristics  of 
his  Hearers 

The  attitude  of  any  individual  hearer  toward  the  contem- 
plated act  is,  of  course,  usually  unknown  to  the  orator.  But 
in  every  audience,  in  addition  to  the  universal  impulses  which 
grow  out  of  the  tendency  of  human  nature  toward  perfection, 
there  is  a  certain  body  of  prejudices,  tastes,  and  dispositions 
which  may  with  confidence  be  regarded  as  characterizing  all. 
Reared  in  the  same  climate,  nurtured  under  the  same  insti- 
tutions, speaking  the  same  language,  reading  the  same  books, 
educated  at  the  same  schools,  engaged  in  the  same  general 
occupations,  with  the  same  traditions  and  the  same  social 
and  religious  standards,  there  is  among  them  a  community 
of  thought  and  feeling  which  predisposes  them  to  act  alike 
concerning  any  measure  that  may  be  proposed.  The  average 
man  of  such  an  audience  is  a  fair  exponent  of  the  intelli- 
gence, the  prejudices,  and  the  proclivities  of  all,  and  a 
knowledge  of  this  average  man  sufficient  for  the  purposes 
of  oratory  is  always  accessible  to  the  orator,  and  must  always 
be  obtained.  To  the  audience,  as  personified  in  this  average 
of  its  intellectual  attainment  and  prevailing  impulse,  the 
orator  must  accommodate  his  entire  oration.  He  must  pre- 
sent his  ideas  in  such  forms  that  they  will  be  at  once  assimi- 
lated by  his  hearers.  He  must  employ  such  illustrations  as 
they  understand,  and  use  such  words  and  phrases  as  are 

27 


§  34  FORENSIC   ORATORY. 

familiar  to  their  ears.  He  must  avoid  examples  and  allusions 
which  render  them  conscious  of  their  own  ignorance.  He 
must  not  contradict  their  prejudices,  nor  attack  systems  or 
theories  which  they  hold  in  high  regard.  He  must  shun 
everything  which  calls  their  attention  from  his  subject  and 
directs  it  toward  himself,  or  which  in  any  manner  reminds 
them  of  his  superior  wisdom  or  ability.  He  must  refrain 
from  overtaxing  them  by  obscure  images  or  intricate  demon- 
strations, and  from  wearying  them  with  platitudes  or  needless 
repetitions.  An  audience  to  whom  an  orator  thus  adapts 
himself  always  regard  him  as  a  friend,  and,  although  usually 
unconscious  of  his  influence  upon  them,  are  disposed  to 
follow  him  in  his  conclusions,  and  finally  to  act  as  he 
desires. 

§  35.  Process  of  Persuading :  Orator  must  Adapt  Each 
Part  of  his  Oration  to  the  Progressive  Movement 
of  the  Minds  of  his  Hearers. 

The  orator  must  not  only  adapt  his  method  to  his  hearers, 
he  must  adapt  it  also  to  the  process  in  which  he  is  engaged. 
To  move  their  minds  and  hearts  with  steady  progress  toward 
conviction  and  determination,  his  oration  must  pursue  the 
same  progressive  movement.  While  no  thought  should  be 
succeeded  by  another  until  its  full  effect  upon  the  hearers  is 
exhausted,  and  no  new  thought  should  be  advanced  until 
they  are  prepared  for  its  reception,  yet  no  digression  or 
delay  should  be  permitted.  The  orator  has  no  use  for  an 
extended  chain  of  reasoning,  or  for  minute  descriptions  which 
turn  aside  the  current  of  idea  and  impulse  from  their  proper 
channel,  and  hinder  rather  than  promote  his  aims.  The  brief 
narration,  the  known  authority,  the  fit  example,  the  quick, 
intense  appeal,  —  these  only  are  available  to  him,  as  with  all 
his  energies  he  urges  on  his  hearers  to  the  immediate  per- 
formance of  his  will. 


28 


OF  THE  ART   OF   ORATORY.  §  36 

§  36.  Process  of  Persuading  :  Orator  must  Adapt  Each 
Part  of  his  Oration  to  the  Changing  Attitude 
of  his  Hearers  toward  the  Proposed  Act :  Use 
of  Rhetorical  Figures. 
During  this  constant  progress  the  ideas  and  impulses  of 
the  auditor  are  undergoing  constant  change.  Each  new 
thought,  and  each  new  phase  of  thought,  arouses  in  his  mind 
new  questions,  which,  although  unspoken,  the  orator  must 
recognize  and  solve.  Every  oration  is  in  reality  a  dialogue, 
in  which  the  doubts  and  objections  of  the  auditor  are  so 
many  silent  interrogatories  to  which  the  orator  audibly 
replies.  To  do  this  without  monotony,  to  put  the  same 
idea  in  varied  forms  suited  to  the  changing  disposition  of 
the  hearer  without  apparent  repetition,  taxes  all  the  arts  of 
rhetoric.  Those  turns  of  thought  and  language,  which  are 
called  the  figures  of  idea  and  speech,  here  become  indispen- 
sable. They  are  not  merely  ornaments,  they  multiply  ideas 
by  multiplying  forms  for  their  expression ;  they  make  clear, 
by  some  happy  word  or  sentence,  what  would  otherwise 
demand  a  tedious  explanation  or  extended  argument ;  they 
render  palatable  even  the  most  unwelcome  truths,  and  clothe 
the  weakest  thoughts  with  majesty  and  power.  These,  how- 
ever, must  also  be  adapted  to  the  auditor.  The  rhetoric  of 
the  orator  must  be  the  rhetoric  of  his  hearers.  The  figures 
they  employ,  the  epithets  and  metaphors  which  characterize 
their  habitual  speech,  however  homely,  however  unpoetic, 
should  be  his  figures  also,  and  to  depart  from  these  into 
those  higher  and  perhaps  more  perfect  forms  of  speech 
which  cultivated  minds  alone  could  comprehend,  is  to  de- 
stroy his  chances  of  success,  and  sacrifice  to  a  fastidious 
taste  the  only  object  for  which  oratory  contends.  Figures 
must  also  be  suited  to  the  progressive  character  of  the 
oration.  Poetic  figures,  designed  to  please  and  gratify  the 
mind,  and  on  which  it  rests  and  meditates,  have  no  place  in 
oratory.     Oratory  is  thought  in  motion,  not  at  rest.     It  is 

29 


§  36  FORENSIC   ORATORY. 

a  living  force  urging  and  driving  on  the  ideas  and  impulses 
of  the  auditor,  and  every  thought  and  expression  which  it 
uses  is  pregnant  with  activity.  No  figure,  therefore,  is  per- 
missible that  does  not  rouse  and  stimulate,  that  does  not  add 
to  the  momentum  of  the  blows  which  the  orator  incessantly 
rains  down  upon  the  thoughts  and  feelings  of  his  audience. 
These  figures  must  be  also  fitted  to  the  theme.  A  rhetorical 
figure  which  is  unsuited  to  the  subject,  whether  by  its  mag- 
nificence or  meanness,  is  recognized  at  once  as  but  a  paltry 
decoration,  and  excites  disgust.  No  rhetoric  can  be  too 
grand,  nor  strike  the  hearer  with  surprise,  nor  even  attract 
his  attention  to  itself  as  art,  if  it  is  appropriate  to  the  thought 
which  it  expresses,  and  finds  him  ready  to  receive  it.  And 
nothing,  on  the  other  hand,  so  vividly  arouses  his  suspicions, 
and  puts  him  on  his  guard  against  the  orator,  as  to  per- 
ceive that  he  is  calling  to  his  aid  the  artifices  of  the  schools, 
and  weaving  cunning  webs  of  words  to  catch  the  careless 
and  ensnare  the  weak. 


§  37.  Process  of  Persuading  :  Orator  must  Believe  what 
he  Asserts,  and  Feel  the  Emotions  he  Seeks  to 
Arouse. 

The  orator  who  would  thus  persuade  must  be  himself 
persuaded.  In  vain  are  all  his  efforts  to  adapt  his  words 
and  ideas  to  his  hearers,  to  move  them  steadfastly  toward 
the  contemplated  act,  and  to  follow  all  their  changing  moods 
with  ever  varying  imagery,  unless  the  ideas  which  he  pre- 
sents and  the  impulses  which  he  endeavors  to  excite  are 
operating  and  ruling  in  his  own  mind  and  heart.  The  orator 
who  does  not  feel  may  yet  convince,  for  the  laws  which 
govern  human  reasoning  do  not  derive  their  force  from 
human  sympathy.  But  he  who  would  arouse  the  hearts  of 
men,  who  would  influence  their  emotions  and  control  their 
wills,  must  touch  them  with  fire  from  the  blazing  altar  of  his 
30 


OF  THE  ART   OF   ORATORY.  §  37 

own  heart.  "  Si  vis  me  fiere,  dolendum  est  primum  ipsi 
tibi,"  was  the  maxim  of  the  teacher  of  the  art  of  poetry. 
And  masters  of  the  sublimer  art  of  oratory  have  also 
said  :  "  Ardeat  qui  vult  incendere."  "  Prius  afficiamur  ipsi 
ut  alios  afficiamus." 


31 


§38  FORENSIC   ORATORY. 


CHAPTER  V. 

OF   THE   QUALIFICATIONS    OF   THE   ORATOR. 

§  38.     Qualifications  of  the  Orator  Extraordinary. 

That  an  orator  who  aims  thus  to  control  the  minds  and 
hearts  of  men  should  be  endowed  with  more  than  ordinary 
attributes,  requires  no  proof.  It  is  unquestionably  true  that 
any  man,  on  an  occasion  of  absorbing  interest  to  him,  may 
by  his  untrained  speech  subdue  and  rule  an  audience  whose 
modes  of  thought  and  dispositions  are  identical  with  his  ; 
for  there  are  moments  of  emergency  and  inspiration  which, 
for  the  instant,  clothe  the  mildest  and  the  weakest  with  al- 
most superhuman  powers.  But  the  true  orator  does  not 
depend  upon  emergencies  or  inspirations,  nor  are  his  audi- 
tors invariably  identified  with  him  in  impulses  or  in  ideas. 
He  speaks  to  man,  not  men,  and  wheresoever  he  finds  man- 
hood he  is  able  to  convince  and  to  persuade.  He  discusses 
questions  in  which  his  interest  is  as  transitory  as  the  breath 
which  he  exhales,  and  burns  with  emotions  which  are  born 
and  perish  with  the  passing  hour.  His  ideas  and  his  im- 
pulses awake  and  sleep  at  the  mandate  of  his  will,  and  ex- 
press themselves  in  words  and  actions  which  vary  with  the 
varying  degrees  and  circumstances  of  mankind.  In  him  all 
phases  of  humanity,  all  attitudes  of  thought,  all  tastes  and 
tendencies,  are  faithfully  reflected.  He  is  literally  all  things 
to  all  men,  for  thus  only  can  he  enter  into  and  control  the 
hearts  and  minds  of  all. 

§  39.     Qualifications  of  the  Orator  Chiefly  Acquired  by 
Discipline. 
With  one  or  two  exceptions  these  necessary  attributes  are 
the  result  of  discipline.     In  natural  endowments  individuals 
32 


OF   THE   QUALIFICATIONS   OF  THE   ORATOR.      §  40 

may  so  far  differ  that  a  severer  training  may  be  requisite  for 
one  than  for  another,  but  there  is  none  who  can  without  self- 
cultivation  transcend  the  narrow  sphere  of  his  own  spon- 
taneous ideas  and  impulses,  and  enter  into  regions  of  thought 
and  aspiration  where  other  minds  habitually  dwell.  Only  by 
stern,  continuous  effort  can  he  gather  and  assimilate  those 
stores  of  knowledge  and  experience,  which  enable  him  to 
apprehend  and  reproduce  within  himself  the  ideas  and  dis- 
positions of  his  fellow  men  until  for  the  time  being  he  be- 
comes identified  with  them.  Only  by  unremitting  and 
exhaustive  cultivation  of  his  capabilities  of  thought  and  of 
expression  can  he  acquire  the  art  of  adapting  his  modes  of 
speech  to  every  grade  and  attitude  of  mind,  so  that  upon 
his  chosen  subject,  whatever  be  its  nature,  he  can  concen- 
trate the  intellectual  and  moral  energies  of  all  his  hearers, 
and  make  them  realize  it  as  the  supreme  object  of  their 
interest  and  action. 

§  40.     Qualifications  of  the  Orator  :  A  Good  Character. 

Among  the  most  important  attributes  of  the  orator  is  ex- 
cellence of  character  and  reputation.  Oratory  is  essentially 
a  moral  force.  The  universal  impulses,  through  which  it 
moves  the  will,  are  all  developed  from  the  tendency  of 
human  nature  toward  perfection.  The  ideas  by  which  these 
impulses  are  generated  correspond  to  the  same  moral  stan- 
dard, and  participate  in  the  same  exalted  tendencies.  These 
excellent  ideas  and  noble  impulses  the  orator  must  possess 
within  himself  before  he  can  impart  them  to  his  hearers. 
That  the  idea  of  duty  can  be  so  conceived  as  to  operate 
with  absorbing  energy  upon  the  mind,  and  thus  excite  a 
dominating  impulse  in  the  heart,  when  every  natural  thought 
and  impulse  is  contrary  to  duty,  is  impossible.  A  good  idea 
may  be  suggested  to  an  evil  mind,  and  noble  impulses  be 
stirred  in  a  depraved  heart  by  the  persistent  urging  of 
another,  but  excellent   ideas  are  not  developed  nor  good 

3  33 


§  40  FORENSIC   ORATORY. 

impulses  aroused  without  external  aid,  except  in  one  who  is 
himself  loyal  to  duty,  a  lover  of  virtue,  a  faithful  pursuer  of 
the  highest  good.  Bad  men  may  be  great  rhetoricians. 
Their  words  may  sound  or  read  like  oracles  from  heaven. 
But  that  resistless  moral  force,  which  springs  only  from  con- 
viction of  the  truth  and  from  desire  to  reproduce  the  truth  in 
others,  and  without  which  oratory  never  moves  the  will, 
however  much  it  entertains  the  intellect  and  pleases  the 
imagination,  —  that  force  is  wholly  wanting.  Upon  the  altars 
of  such  hearts  the  fires  of  duty,  happiness,  and  virtue  burn 
no  longer.  No  living  coals  from  them  can  kindle  kindred 
fires  within  the  hearts  of  others. 

§  41.  Qualifications  of  the  Orator  :  A  Good  Reputation. 
This  excellence  and  nobility  of  character  in  the  orator 
must  be  also  known  to  his  auditors.  Their  confidence  in  his 
sincerity  and  honesty  of  purpose  is  indispensable  to  his  suc- 
cess. Under  whatever  circumstances  and  on  whatever  sub- 
ject he  addresses  them,  their  knowledge  of  his  intention  to 
persuade  them  rouses  their  independence  and  renders  them 
instinctively  suspicious  of  his  methods,  and  this  suspicion 
and  hostility  are  overcome  only  when  they  are  satisfied  of  his 
reliability  and  of  his  disposition  to  be  truthful  and  sincere. 
This  confidence  established,  they  are  no  longer  conscious  of 
his  individuality ;  they  seem  to  themselves  to  think  what  he 
in  reality  suggests,  to  attain  by  their  own  reasoning  the  con- 
clusions which  he  draws,  and  to  feel  naturally  the  emotions 
which  he  constantly  inflames.  Thus  having  yielded  to  his 
hands  the  helm  of  thought,  their  minds  and  hearts  reflect  the 
ideas  and  impulses  of  his,  and  when  at  last  they  will  to  do 
the  act  which  he  desires  there  is  no  recognition  on  their 
part  that  their  volition  is  not  free  and  uncontrolled.  That, 
with  the  inconsistency  between  the  reputation  of  the  orator 
and  his  professions  staring  them  in  the  face,  the  auditors  can 
ever  feel  this  confidence  in  him,  as  their  friend  and  guide,  is 

34 


OF  THE   QUALIFICATIONS   OF  THE   ORATOR.      §  42 

utterly  incredible.  The  known  violator  of  duty,  the  known 
enemy  of  virtue,  the  known  promoter  of  misery  and  wrong, 
tolerated  though  they  may  be  while  treading  silently  in  the 
beaten  track  of  their  own  vices,  excite  a  storm  of  indignation 
and  rebuke  if  they  appear  as  the  apostles  of  obedience,  ex- 
cellence, or  happiness.  So  far  from  persuading,  they  disgust, 
antagonize,  repel.  And  even  when  the  character  of  the  ora- 
tor is  doubtful,  and  the  natural  resistance  of  a  mind  jealous 
for  its  freedom  is  supported  only  by  a  suspicion  of  his  insin- 
cerity, the  empire  which  he  seeks  over  the  will  is  never 
gained.  That  such  men  have  dazzled  audiences  with  the 
splendor  of  their  rhetoric  and  elocution,  that  where  they 
flattered  vanity  and  fostered  passion,  or  even  where  they 
stimulated  impulses  already  roused  and  advocated  measures 
already  grateful  to  their  hearers,  they  have  witnessed  the 
performance  of  the  acts  which  they  proposed,  must  be  con- 
ceded. But  that  an  orator  of  evil  life  and  ill  repute  has 
ever  so  wrought  on  the  nobler  impulses  as  to  persuade  an 
audience  previously  hostile  or  indifferent  to  work  his  will, 
may  safely  be  denied.  History  affords  no  example  in  which 
mankind  have  trusted  in  and  followed  a  leader  whom  they 
believed  to  be  dishonest,  or  have  willingly  received  instruc- 
tion as  to  truth  and  duty  from  a  teacher  who  was  known  to 
be  corrupt  and  wicked.  It  is  not,  therefore,  without  reason 
that  the  definition  of  the  orator,  put  by  Quintilian  in  the 
mouth  of  the  elder  Cato,  has  always  been  recognized  as 
expressing  his  essential  characteristics :  "  Vir  bonus,  dicendi 
peritus." 

§  42.  Qualifications  of  the  Orator  :  Knowledge  of  Human 
Nature. 
Another  essential  qualification  of  the  orator  is  a  thorough 
knowledge  of  human  nature.  Even  if  the  artisan  in  wood  or 
brass  or  iron  could  be  forgiven  for  his  ignorance  of  the  ma- 
terial on  which  he  labors,  the  orator  could  find  no  fit  excuse 

3? 


§  42  FORENSIC   ORATORY. 

for  his  own  ignorance  of  the  far  grander  and  more  complex 
material  on  which  his  efforts  are  employed.  Human  nature 
is  the  soil  in  which  he  delves.  To  him  the  knowledge  of  its 
constituent  elements,  of  the  proper  methods  of  its  cultiva- 
tion, and  of  the  seeds  whose  germination  yields  the  surest 
harvest,  is  absolutely  necessary.  He  must  be  conversant 
not  only  with  those  universal  characteristics  which  are  com- 
mon to  mankind,  but  with  the  special  characteristics  which 
distinguish  different  classes  and  communities  of  men.  He 
must  understand  the  language  which  the  human  features 
speak,  and  read  upon  the  faces  of  his  hearers  their  transitory 
as  well  as  their  habitual  dispositions.  With  the  experienced 
wisdom  of  the  sage  he  must  blend  the  intuitions  of  a  child, 
that  the  souls  of  those  whom  he  addresses  may  be  laid  bare 
before  his  vision  as  if  their  owners  held  them  naked  in  their 
open  hands.  A  knowledge  of  human  nature  such  as  this 
can  never  be  obtained  from  books  alone.  Study  of  these 
may  fit  him  to  observe,  and  may  impart  to  him  the  fruits 
of  observations  made  by  others.  But  the  great  volume  of 
humanity  which  lies  before  him  is  the  manual  from  which  he 
must  learn  this  portion  of  his  chosen  art.  The  man  who  is 
a  bookworm  or  a  solitary  can  never  be  an  orator.  The  ora- 
tor must  study  men.  He  must  dwell  with  and  contemplate 
mankind,  not  as  a  mere  spectator,  but  as  an  active  and  inter- 
ested sharer  in  their  aims  and  hopes,  their  disappointments 
and  their  fears.  He  must  participate,  so  far  as  may  be,  in 
the  experiences  which  fall  to  men  of  every  rank  and  station, 
that  their  results  in  his  own  mind  and  heart  may  teach  him 
what  effects  they  have  produced  on  those  by  whom  they  are 
habitually  encountered.  He  must  subject  himself  to  contact 
with  the  lowest  and  most  ignorant,  as  well  as  with  the  learned 
and  refined,  that  every  page  in  his  great  handbook  may  dis- 
close to  him  its  own  peculiar  lesson  and  make  him  thor- 
oughly familiar  with  the  subject  which  it  concerns  him  most 
to  understand. 
36 


OF   THE   QUALIFICATIONS   OF  THE   ORATOR.      §  43 

§  43.     Qualifications  of  the  Orator  :   Earnestness. 

Another  important  attribute  of  the  orator  is  earnestness  of 
character.  The  influence  of  an  orator  over  his  audience 
depends  largely  upon  the  energy  with  which  his  ideas  oper- 
ate on  his  own  mind,  and  the  force  with  which  his  impulses 
act  upon  his  will.  A  cold  and  stolid  nature,  however  intel- 
lectually acute  and  morally  correct,  fails  to  unite  its  hearers 
to  itself  in  those  strong  bonds  of  sympathy  which  exclude 
the  consciousness  of  separate  individuality,  and  cause  their 
different  ideas  and  emotions  to  become  the  common  prop- 
erty of  both.  An  earnest,  tender,  and  magnetic  disposition 
wins  its  way  immediately  into  the  hearts  of  men,  and  through 
those  subtle  chords  which  intense  feeling  in  the  speaker 
always  wakens  in  the  hearer  reaches  his  thoughts  and  im- 
pulses with  a  directness  and  a  vigor  which  sterner  disposi- 
tions are  unable  to  attain.  This  attribute,  more  than  any 
other  of  those  necessary  to  the  orator,  is  the  gift  of  nature. 
It  is  the  distinguishing  characteristic  of  the  purely  natural 
orator,  and  gives  to  him  an  influence  which  nothing  else  can 
rival.  It  is  not,  however,  wholly  denied  to  sedulous  cultiva- 
tion, even  when  originally  wanting.  That  constant  inter- 
course with  men,  that  familiarity  with  their  joys  and  sorrows, 
which  first  produces  self-forgetfulness  and  then  an  earnest 
interest  in  their  welfare,  by  slow  degrees  begets  and  fosters 
those  sympathies  whose  operation  on  the  heart,  and  whose 
expression  in  the  words  and  manner,  of  the  orator  constitute 
this  rare  and  fascinating  quality.  But,  on  the  other  hand, 
this  earnestness  and  tenderness  of  nature  must  not  be  exces- 
sive. An  orator  whose  disposition  is  so  sensitive  that  his 
ideas  engross  his  mind  and  heart  and  render  him  neglectful 
of  the  results  produced  on  others,  or  whose  emotions  mani- 
fest themselves  in  words  or  actions  which  attract  attention 
from  the  thought  uttered  to  the  speaker,  labors  under  a  dis- 
advantage even  greater  than  that  arising  from  mere  natural 
coldness  and  stolidity.     An  earnestness  which  to  the  audi- 

37 


§  43  FORENSIC    ORATORY. 

ence  appears  unsuited  to  the  theme,  and  for  which  there  is 
yet  no  adequate  occasion,  repels  and  estranges  them,  either 
by  exciting  a  suspicion  of  its  insincerity,  or  by  rebuking  them 
for  their  own  want  of  feeling.  No  auditor  will  weep  solely 
because  the  orator  is  in  tears,  but  when  the  emotions  of  the 
orator  are  aroused  in  due  and  just  proportion  to  the  ideas  he 
enunciates,  and  correspond  exactly  with  their  own,  his  sensi- 
tive and  earnest  disposition  bestows  on  him  a  power  over  his 
audience  against  which  they  are  seldom  able  to  contend. 

§  44.     Qualifications  of  the  Orator  :    Common  Sense. 

Another  qualification  of  the  orator,  and  not  less  essential, 
is  common  sense,  or  that  natural  sagacity  by  which  he  intu- 
itively discerns  what  the  occasion  and  the  temper  of  his 
audience  demand.  This  is  the  faculty  by  which  he  prac- 
tically applies  his  knowledge  of  human  nature.  In  the  variety 
of  his  audiences  and  subjects,  in  the  constantly  shifting  atti- 
tude of  every  audience  toward  the  matter  in  discussion,  he 
must  be  able  instantly  to  recognize  what  thought  or  word  is 
fittest  for  his  purpose.  No  previous  preparation  can  confer 
this  power  upon  him.  The  state  of  mind  and  heart  to  which 
he  must  adapt  his  utterances  is  of  his  own  creation,  and  must 
be  realized  and  responded  to  by  him  at  once  before  it  passes 
by.  He  must  perceive  clearly  when  to  speak  and  when  to 
preserve  silence,  which  of  his  premeditated  arguments  to 
offer,  which  to  suppress  and  which  to  modify,  what  argu- 
ments of  his  adversary  to  refute  and  what  to  leave  unnoticed, 
what  ideas  to  urge  to  the  full  measure  of  their  energy,  what 
to  employ  in  part  and  leave  their  natural  effect  upon  the 
mind  to  be  evolved  by  the  reflection  of  the  hearer.  Without 
this  quality  all  the  foregoing  qualities  are  vain.  It  avails 
little  with  the  auditor  that  the  orator  is  a  good  man,  that  he 
understands  human  nature,  that  he  is  in  earnest,  if  in  his 
actual  speaking  he  disregards  all  the  requirements  of  pro- 
priety, and,  by  suppressing  what  he  ought  to  say  and  saying 
38 


OF  THE   QUALIFICATIONS   OF  THE   ORATOR.      §  45 

what  had  better  be  suppressed,  he  arouses  prejudice,  solid- 
ifies antagonism,  and  eventually  destroys  his  cause.  This 
quality,  like  the  last,  is  the  gift  of  nature.  Some  men  are 
endowed  with  such  an  exquisite  sense  of  the  fitness  of  things 
that  they  never  speak  an  inappropriate  word,  nor  perform  an 
action  at  an  improper  place  or  time.  Others  exhibit  charac- 
teristics wholly  different,  always  involving  themselves  or  their 
associates  by  some  act  or  word  which,  if  not  objectionable  in 
itself,  becomes  so  by  its  entire  inconsistency  with  existing 
circumstances.  Self-cultivation  can,  however,  do  much  to 
correct  this  faulty  disposition.  It  generally  results  from  habits 
of  carelessness  and  haste.  A  man  who  understands  what  the 
occasion  actually  requires,  and  exercises  due  control  over  his 
words  and  conduct,  never  unwittingly  outrages  propriety. 
A  thorough  knowledge  of  human  nature,  combined  with  a 
full  acquaintance  with  his  subject,  will  teach  the  orator  what 
he  ought  to  say,  and  watchfulness  over  himself  will  keep  him 
from  the  utterance  of  what  is  injurious  or  unnecessary.  By 
careful  discipline  in  this  direction,  he  may  develop  in  him- 
self such  a  degree  of  sagacity  and  self-control  as,  except  in 
extraordinary  instances,  will  prevent  him  from  falling  into 
fatal  error. 

§  45.     Qualifications  of  the  Orator  :  Logical  Skill. 

The  possession  of  logical  skill  and  acumen  is  another 
requisite  in  oratory.  Although  the  orator  rarely  employs 
philosophical  methods  of  demonstration,  or  frames  his  argu- 
ments in  syllogistic  form,  yet,  as  whatever  arguments  he  uses 
are  reducible  to  syllogisms,  they  are  subject  to  the  same 
fallacies  which  attend  all  other  modes  of  reasoning.  To 
construct  an  enthymeme,  adduce  examples,  select  and  cite 
authorities,  in  such  a  manner  that  they  will  be  impregnable 
against  the  assaults  of  his  adversary,  while  at  the  same  time 
they  convince  the  hearer,  is  his  constant  duty ;  and  to  pre- 
sent  these   arguments   on   the   spur   of  the    moment,    and 

39 


§  45  FORENSIC   ORATORY. 

without  premeditation,  demands  the  highest  dialectic  skill. 
Only  an  orator  whose  intellect  is  well  trained  in  logical 
methods,  and  with  every  faculty  alert,  can  avoid  the  dangers 
which  at  such  times  await  him.  The  reasoning  powers  have 
another  task  to  perform,  and  one  almost  equally  severe,  in 
analyzing  and  refuting  the  arguments  of  the  adversary.  To 
bring  such  arguments  to  the  test  as  they  successively  fall 
upon  the  ear,  to  discern  wherein  their  strength  or  fallacy 
consists,  to  devise  methods  of  evading  them  when  sound  and 
of  exposing  and  destroying  them  when  weak,  requires  the 
nicest  logical  perceptions  and  the  utmost  fertility  of  inven- 
tion and  resource.  Such  dialectic  skill  is  the  result  of  long 
and  constant  practice.  It  is  not  enough  to  have  the  rules  of 
logic  graven  on  the  memory,  or  to  understand  the  mode  in 
which  a  perfect  syllogism  should  be  framed.  The  mind  of 
the  orator  must  have  become  so  accustomed  to  move  accord- 
ing to  these  rules,  that  it  instinctively  detects  a  fallacy  in  the 
reasoning  of  others,  and  as  instinctively  avoids  it  in  his  own. 
The  skill  which  may  suffice  for  the  polemic  in  his  closet,  or 
for  the  philosopher  in  his  academy,  will  not  suffice  for  one 
whose  weapon  is  the  spoken  word.  Dialectic  science  makes 
no  demand  on  any  man  to  be  compared  with  that  which  it 
makes  upon  the  orator,  and  no  man  more  devoted  than  he 
is  to  its  cultivation  ought  ever  to  be  found. 

§  46.  Qualifications  of  the  Orator  :  Universal  Information. 
The  orator  needs  also  an  almost  universal  knowledge.  To 
whatever  form  of  oratory  he  devotes  himself,  the  questions 
which  he  discusses  relate  to  every  department  of  human 
learning,  and  on  every  question  his  information  ought  to  be 
as  far  as  possible  complete.  By  undertaking  to  convince 
and  to  persuade,  he  assumes  to  himself  a  better  acquaintance 
with  his  subject  than  his  auditors  possess,  and  he  can  justify 
this  assumption  to  their  minds  only  as  they  perceive  that  he 
is  able  to  resolve  every  perplexity  and  doubt  that  may  sug- 
40 


OF   THE   QUALIFICATIONS   OF   THE   ORATOR.       §  46 

gest  itself  to  them.  If  it  were  true,  as  has  been  said,  that 
"  any  man  can  speak  well  upon  a  matter  which  he  fully  under- 
stands," it  is  true  also  that  no  man  can  speak  well  upon  a 
matter  of  which  he  is  ignorant.  But  his  knowledge  is  not  to 
be  limited  to  the  mere  question  which  constitutes  the  theme 
of  his  discourse.  His  examples  and  authorities,  his  illustra- 
tions and  his  figures,  demand  a  range  of  information  which 
is  simply  without  boundary,  embracing  all  the  ages  of  biog- 
raphy and  history,  all  the  stores  of  wisdom  that  are  crys- 
tallized in  proverb  or  in  song,  all  the  phenomena  of  earth 
and  sea  and  air.  Whatever  may  define,  whatever  may  en- 
force, whatever  may  adorn,  is  his  ;  and  nothing,  human  or 
divine,  that  he  can  know  must  be  rejected  as  beyond  his 
needs.  Not  all  the  knowledge  which  the  orator  requires  can 
be  obtained,  however,  in  the  seclusion  of  his  study,  or  by 
contemplating  the  phenomena  of  consciousness.  Of  the 
special  subject  which  he  treats  he  must  inform  himself  by 
every  proper  means,  according  to  its  nature.  But  for  the 
knowledge  which  he  fashions  into  arguments  and  illustrations 
he  must  look  among  the  men  who  are  to  be  his  auditors.  If 
they  are  learned  in  ancient  story,  if  they  have  pierced  the 
mysteries  of  science,  or  are  familiar  with  the  images  and 
incidents  of  poetry  and  romance,  out  of  these  treasures  of 
truth  and  beauty  he  may  gather  the  examples  and  authori- 
ties and  figures  which  he  employs.  But  to  an  audience  of 
plain,  practical  men,  for  whom  the  world  is  their  own  field 
and  fireside,  and  history  is  the  current  record  of  to-day,  such 
arguments  and  illustrations  would  be  useless.  To  them  the 
orator  must  speak  of  other  and  more  homely  things,  drawing 
his  images  from  what  they  see  and  hear,  evoking  the  great 
thoughts  which  actuate  their  lives,  and  leading  them  by  ex- 
amples taken  from  the  persons  or  events  which  are  within 
their  observation  and  experience.  Hence  the  orator  must 
not  only  know  what  may  be  known  on  every  matter  within 
the  scope  of  human  understanding,  but  he  must  know  the 

41 


§  46  FORENSIC   ORATORY. 

same  thing  in  many  aspects  and  in  many  different  relations. 
Nay,  more,  he  must  not  only  know  it  in  its  true  and  perfect 
character,  but  also  in  those  false  conceptions  of  it  which  so 
often  prevail  among  the  unlearned  and  the  prejudiced,  in 
order  that,  whether  he  is  speaking  to  the  wise  or  to  the  fool- 
ish, he  may  employ  the  fact  according  to  their  idea  and 
interpretation. 

§  47.    Qualifications  of  the  Orator  :     Pleasing  Manner. 

Another  attribute  of  the  orator  is  a  pleasing  manner.  The 
first  impression  which  he  makes  upon  his  hearers  is  by  his 
personal  appearance  and  behavior.  Before  he  fairly  looks 
them  in  the  face,  before  the  first  sound  issues  from  his  lips, 
they  have  received  some  impulse  for  him  or  against  him  from 
his  countenance  and  attitude  alone.  During  his  whole  oration 
these  impressions  are  repeated,  and,  apart  from  every  idea 
that  he  presents  and  from  every  argument  that  he  employs, 
there  is  an  influence  which  flows  from  him  to  them,  and 
often  exercises  more  control  over  their  action  than  either 
his  reasonings  or  his  exhortations.  It  is  not  true,  perhaps, 
that  "  the  manner  is  the  orator,"  but  it  is  true  that  one 
whose  disagreeable  aspect  or  demeanor  constantly  forces 
itself  upon  the  notice  of  his  audience  can  never  lead  them 
to  forget  themselves  and  him,  and  to  become  absorbed  in 
and  devoted  to  the  measures  that  he  urges.  This  pleasing 
manner  is  not,  however,  dependent  upon  physical  symmetry 
or  beauty.  It  has  not  been  the  lot  of  the  world's  greatest 
orators  to  vie  with  Apollo  in  majesty  of  form,  or  with  Adonis 
in  perfection  of  feature.  Doubtless  some  strange  deformity, 
too  horrible  or  too  ridiculous  to  escape  attention,  would  be 
fatal  to  his  power.  But  when  the  homely,  rugged  face  is  illu- 
minated with  the  fire  of  genius,  or  the  diminutive  and  puny 
body  throbs  with  noble  and  resistless  impulses,  there  are  few 
eyes  so  critical  as  to  perceive  the  ugliness  of  one,  or  hearts 
so  cold  as  to  despise  the  weakness  of  the  other. 
42 


OF  THE   QUALIFICATIONS   OF  THE   ORATOR.       §  49 

§  48.  Qualifications  of  the  Orator  :  A  Manner  Indicative 
of  a  Good  Character. 
The  manner  of  the  orator  can  favorably  influence  his 
audience  only  when  it  expresses  the  sentiments  of  an 
upright  and  generous  heart.  To  be  good  in  himself  that 
he  may  realize  and  feel  what  he  imparts  to  others,  to  be 
regarded  by  his  hearers  as  an  example  of  that  which  he 
desires  them  to  become,  and  to  exhibit  this  interior  char- 
acter in  his  exterior  conduct  toward  them,  is  to  be  truly 
eloquent,  to  win  their  confidence,  to  please.  The  manner 
of  the  orator  is  thus  the  continuous  representation  to  his 
auditors  of  the  sentiments  with  which  he  wishes  to  inspire 
them,  and  as  such  it  must  be  thoroughly  consistent  with  the 
high  and  solemn  obligations  which  he  is  attempting  to  dis- 
charge. To  discuss  questions  of  duty,  happiness,  or  virtue 
with  a  trifling,  careless  air,  to  mingle  sallies  of  paltry  wit 
with  exhortations  to  excellence  and  self-denial,  to  manifest 
in  the  countenance  or  in  the  intonations  of  the  voice'  those 
evil  passions  which  the  noble  impulses  of  human  nature  con- 
stantly condemn,  unceasingly  reminds  the  auditors  that  the 
orator  is  insincere,  and  ought  not  to  be  trusted  as  their  guide. 
The  idea  in  the  mind,  the  impulse  in  the  heart,  the  expres- 
sion in  the  manner  of  the  orator,  —  all  these  must  correspond, 
or  he  can  never  exercise  that  moral  force  upon  his  hearers 
which  is  the  solitary  test  of  oratory. 


§  49.    Qualifications  of  the  Orator  :    A  Modest  Manner. 

The  manner  of  the  orator  should  likewise  express  the 
modesty  and  self-distrust  with  which  he  undertakes  his 
arduous  labor.  Nothing  so  much  offends  the  auditor,  or 
so  quickly  puts  him  on  his  guard  and  arrays  him  against  the 
orator,  as  arrogance.  The  orator  who  boldly  offers  battle  as 
if  the  first  blast  upon  his  clarion  were  to  witness  the  surrender 
of  his  hearers,  throws  away  his  chance  of  victory  before  he 

43 


§  49  FORENSIC    ORATORY. 

strikes  a  blow.  No  auditor  can  be  driven  to  a  conclusion. 
nor  will  he  tolerate  for  an  instant  an  evident  attempt  to  over- 
ride his  will.  The  moment  he  discovers  such  an  effort  he 
ceases  to  be  a  friend,  or  even  an  inquirer,  and  becomes  the 
pitiless  critic,  whom  no  argument  will  convince  and  no  so- 
licitation will  persuade.  But  the  orator  who  appears  to  be 
without  self-consciousness,  to  be  regardless  of  a  personal 
triumph  and  anxious  only  for  the  triumph  of  his  cause,  who 
feels  and  shows  that  he  feels  the  magnitude  of  his  respon- 
sibilities and  his  own  inability  to  discharge  them,  elicits  at 
once  the  sympathy  of  his  audience  ;  they  become  interested 
for  his  success,  and  welcome  every  opportunity  to  agree  with 
his  conclusions  and  reflect  his  impulses. 


§  50.  Qualifications  of  the  Orator :  A  Manner  Friendly 
to  his  Hearers. 
The  manner  of  the  orator  should  also  express  his  interest 
in  his  audience.  As  he  does  not  occupy  toward  them  the 
relation  of  a  commander  who  coldly  orders,  or  of  a  guide 
who  mechanically  directs  their  march,  but  rather  of  a  com- 
rade endeavoring  to  make  certain  the  correctness  of  their 
common  path  and  their  arrival  at  the  common  goal,  his 
behavior  toward  them  should  be  that  of  a  solicitous  and 
helpful  friend.  Without  familiarity,  without  presumption, 
but  with  all  dignified  and  gentle  earnestness,  he  bears 
himself  toward  them,  with  eye  and  voice  as  well  as  lan- 
guage perpetually  reminding  them  of  the  united  hopes 
they  cherish,  and  of  the  common  good  that  they  desire. 
An  audience  thus  treated  shortly  forget  that  the  real  aim  of 
the  orator  is  to  draw  them  over  to  him,  not  to  surrender  him- 
self up  to  them.  His  utterances  seem  to  them  rather  the 
echo  than  the  suggestion  of  their  own  thoughts,  and  his  final 
appeal  appears  to  be  the  expression  of  their  determination 
rather  than  its  cause. 
44 


OF  THE   QUALIFICATIONS   OF  THE   ORATOR.      §   52 

§  51.     Qualifications  of  the   Orator  :   Cultivation  of  Man- 
ners Implies  Cultivation  of  Character. 

The  cultivation  of  these  oratorical  manners  is  the  culti- 
vation of  the  traits  of  character  which  they  express.  The 
most  consummate  hypocrite  cannot  always  clothe  himself  in 
the  appearances  of  probity,  humility,  and  benevolence  ;  and 
the  orator  who  should  attempt  to  discipline  his  outward 
demeanor  into  conformity  with  these  well  known  rules,  leav- 
ing his  inner  nature  vicious,  proud,  and  malevolent,  would 
surely  drop  his  mask  at  some  important  moment,  and  ruin 
both  himself  and  his  cause.  To  have  the  manners  of  an 
upright,  modest,  kindly  man,  the  orator  must  be  what  these 
express,  and  being  such,  and  crushing  out  that  demon  of 
self-consciousness  which  makes  even  a  good  man  "  foil  and 
fumble  like  a  knave,"  he  will  appear  to  those  who  hear  him 
to  be  worthy  of  their  fellowship  and  trust. 

§  52.     Qualifications  of  the  Orator  :  Skill  in  the  Art  of 
Speaking. 

Finally,  the  orator  must  be  a  man  skilled  in  the  art  of 
speaking.  The  art  of  speaking  is  not  a  system  of  morals  or 
manners  only.  It  embraces  all  those  rules  which  govern  the 
production  and  communication  of  ideas,  the  logical  arrange- 
ment and  demonstration  of  truths,  the  use  of  language,  the 
construction  of  sentences,  the  employment  of  gesture ;  in 
fine,  the  doing  of  that  act  which  goodness,  knowledge, 
earnestness,  and  pleasing  manners  qualify  the  orator  to  do. 
How  great  a  part  this  skill  in  speaking  plays  in  practical 
oratory  may  be  determined  from  the  fact  that  it  is  to  this 
almost  exclusively  that  all  the  treatises  on  oratory  have  been 
especially  devoted.  The  orator  attains  his  end  by  such  a 
presentation  of  ideas  to  the  minds  of  his  auditors  that  the 
ideas  are  clearly  comprehended,  that  they  operate  with 
energy  upon  the  intellect,  that  they  arouse  their  corre- 
sponding impulses,  and  that  those  impulses  become  strong 

45 


§  52  FORENSIC    ORATORY. 

enough  to  dominate  the  will.  The  art  of  oratory  is  the  art 
of  presenting  ideas  in  such  a  manner  as  to  secure  this 
series  of  results.  Skill  in  this  art  is,  therefore,  that  which 
alone  distinguishes  the  orator  from  other  men.  To  innu- 
merable others  may  the  first  half  of  the  epithet  of  Cato, 
"  Vir  bonus,"  be  applied ;  but  only  of  the  well  trained  ora- 
tor can  the  latter,  "  dicendi  peritus,"  be  truthfully  affirmed. 
The  cultivation  of  this  art,  and  its  complete  appropriation  to 
himself,  is  the  characteristic  duty  of  the  orator.  Its  precepts, 
formulated  in  a  past  which  was  venerable  when  Demosthenes 
was  young,  confirmed  by* ages  of  experience,  and  illustrated 
by  the  orations  which  still  echo  from  the  Bema  and  the 
Forum,  claim  from  the  orator  of  to-day  the  same  assiduity 
and  minuteness  of  devotion  which  they  received  from  the 
pupils  of  Quintilian.  By  mastering  these  precepts,  by  con- 
stant discipline  and  practice  in  his  art,  by  studying  good 
examples,  by  ever  striving  after  a  more  perfect  knowledge 
and  a  higher  skill,  he  adds  to  all  his  natural  and  acquired 
abilities  this  last,  this  characteristic,  this  essential  attribute, 
and  becomes  "a  good  man  skilled  in  speaking." 


46 


OF  FORENSIC    ORATORY.  §  54 


CHAPTER  VI. 

OF   FORENSIC   ORATORY. 

§  53.    Forensic  Oratory  the  Judicial    Form  of  Political 
Oratory. 

Forensic  oratory  is  the  judicial  ibrm  of  political  oratory. 
It  addresses  the  disposition  toward  duty.  It  recognizes 
that  its  auditors  are  naturally  inclined  to  fulfil  their  legal 
obligations.  It  assumes  that  whensoever  the  contemplated 
act  is  identified  in  their  minds  with  these  legal  obligations 
they  will  inevitably  tend  to  its  performance.  Its  object, 
therefore,  is  to  establish  this  identity,  and  to  stimulate 
and  strengthen  the  resulting  impulse  until  it  finds  expression 
in  the  act  proposed. 

§  54.  Forensic  Oratory  Seeks  to  Obtain  the  Favorable 
Decision  of  a  Legal  Controversy. 
The  act  whose  performance  an  advocate  endeavors  to 
secure  is  the  favorable  decision  of  his  cause.  To  render 
this  decision  it  is  necessary  that  his  auditors  should  fully 
comprehend  the  questions  which  the  cause  presents,  that 
they  should  perceive  the  desired  decision  to  be  demanded 
by  the  rules  of  law,  and  that  their  natural  disposition  to  com- 
ply with  this  demand  should  conquer  opposing  influences, 
and  control  their  will.  The  orator  must,  therefore,  create 
within  their  minds  an  accurate  idea  of  every  point  in  contro- 
versy, convince  them  that  the  law  requires  a  judgment  upon 
each  point  in  his  favor,  and  urge  this  conviction  on  them 
with  such  energy  as  to  arouse  their  impulses  toward  duty, 
and  irresistibly  impel  them  to  perform  it. 

47 


§  55  FORENSIC   ORATORY. 

§  55.  Circumstances  Conducing  to  the  Success  of  Foren- 
sic Oratory. 
In  one  portion  of  his  labors  the  circumstances'  of  his 
auditors  afford  the  advocate  much  effective  aid.  Judges 
and  jurymen,  when  honest  and  intelligent,  invariably  ap- 
proach a  cause  with  a  strong  sense  of  duty  and  a  firm 
determination  to  fulfil  it.  All  their  surroundings  remind 
them  of  the  magnitude  of  their  responsibilities.  The  for- 
malities by  which  they  are  selected  from  the  body  of  the 
people,  their  temporary  separation  from  the  outside  world 
by  barriers  invisible  as  well  as  visible,  the  presence  of 
the  contending  parties  with  their  witnesses  and  counsel, 
the  order  and  solemnity  of  the  proceedings,  —  all  these 
concur  to  arouse  their  sensibilities,  and  to  impress  them 
with  the  dignity  of  their  position  and  the  importance  of  the 
interests  committed  to  their  charge.  For  the  time  being, 
the  whole  current  of  their  lives  thus  flows  in  the  direction 
which  the  orator  desires,  predisposing  them  to  obey  the 
impulses  which  he  addresses,  and  rendering  them  submissive 
to  the  influence  of  his  appeal. 

§  56.     Circumstances  Hindering  the  Success  of  Forensic 
Oratory. 

Other  circumstances  in  the  condition  of  the  auditors  are 
hostile  to  their  perfect  comprehension  of  the  nature  of  the 
cause  and  of  the  judgment  which  the  law  demands.  The 
confusion  which  results  from  the  successive  presentation  to 
their  minds  of  many  different  causes,  the  weariness  engen- 
dered by  continuous  compulsory  attention,  the  mental  per- 
turbation excited  by  the  publicity  and  prominence  of  their 
position,  the  consciousness  of  their  own  ignorance  of  the 
merits  of  the  controversy  and  of  their  dependence  upon 
others  for  whatever  light  may  guide  them  in  deciding  it,  con- 
spire to  embarrass  and  defeat  their  efforts  to  ascertain  the 
matter  in  dispute,  and  to  determine  what  their  duty  in  regard 
48 


OF  FORENSIC    ORATORY.  §  58 

to  it  requires.  Hence,  while  it  has  never  happened  that  an 
honest  judge,  or  jury  has  decided  contrary  to  the  known 
justice  of  a  cause,  it  has  by  no  means  been  uncommon  that, 
from  their  failure  to  perceive  its  real  merits  and  to  discover 
on  which  side  truth  and  right  resided,  they  have  determined 
contrary  to  actual  justice,  and  have  unwittingly  become  the 
instruments  of  wrong. 

57.  Art  of  Forensic  Oratory  Consists  of  Three  Pro- 
cesses :  Statement,  Argument,  Appeal. 
Forensic  oratory  consists  of  three  processes,  —  Statement, 
Argument,  and  Appeal.  The  statement  defines  the  issues 
which  are  to  be  submitted  to  the  judgment  of  the  hearers. 
The  argument  demonstrates  their  legal  duty  in  respect  to 
each  one  of  these  issues.  The  appeal  urges  and  directs 
them  toward  the  decision  which  the  advocate  wishes  to 
secure.  The  statement  and  the  argument  occupy  toward 
each  other  the  relation  which  definition  and  demonstration 
occupy  in  every  form  of  oratory.  The  matter  and  the  man- 
ner of  the  whole  oration,  but  especially  of  its  commencement 
and  its  close,  constitute  the  appeal. 

§  58.     The  Statement :   its  Purpose. 

To  create  within  the  minds  of  his  auditors  an  accurate  idea 
of  every  matter  in  dispute,  and  of  his  claims  in  reference 
thereto,  as  well  as  of  the  facts  and  law  on  which  those  claims 
are  based,  is  the  first  duty  of  the  advocate.  That  formal 
definition  of  the  issues  which  is  presented  by  the  pleadings 
is  usually  too  terse  and  technical  to  convey  a  clear  concep- 
tion of  the  actual  controversy,  even  to  the  legal  mind.  The 
orator  must,  therefore,  amplify  it  by  a  statement  in  which, 
with  equal  precision,  but  with  far  greater  completeness  and 
simplicity,  he  explains  every  question  which  his  hearers  are 
expected  to  decide,  and  indicates  the  judgment  which  he 
wishes  them  to  render. 

4  49 


§  59  FORENSIC    ORATORY. 

§  59.    The  Statement :  its  Importance. 

The  importance  of  this  statement  it  is  impossible  to  over- 
rate. From  it  the  hearers  gain  their  first  impressions  of  the 
matters  in  dispute,  and  of  the  claims  of  the  advocate  con- 
cerning them ;  impressions  which  no  subsequent  arguments 
or  evidence  are  able  wholly  to  efface,  and  which  color  and 
interpret  every  thought  or  proposition  that  is  afterward  pre- 
sented to  them.  A  clear,  concise,  and  reasonable  statement 
not  only  informs  the  auditor,  it  pleases  and  sometimes  con- 
vinces him,  while  a  confused,  prolix  or  improbable  statement 
disappoints,  disgusts,  and  generally  repels  him.  To  the  per- 
formance of  this  duty,  therefore,  the  skilful  and  experienced 
advocate  always  devotes  especial  care,  well  knowing  that  a 
faulty  statement  renders  a  convincing  argument  impossible. 

§  60.  The  Argument:  Relates  to  Matters  of  Pact  or 
Matters  of  Law,  or  Both. 
Every  issue  in  a  cause  presents  two  questions,  either  or 
both  of  which  may  be  disputed  :  (i)  What  were  the  facts  in 
which  the  controversy  has  originated  ?  (2)  What  are  the  rules 
of  law  by  which,  in  view  of  those  facts,  the  issue  is  to  be 
determined  ?  The  answer  of  the  orator  to  so  much  of  these 
questions  as  is  not  answered  by  the  admissions  of  the  parties, 
by  conclusive  proof,  or  by  supreme  exterior  authority,  con- 
stitutes the  argument. 

§  61.    The  Argument :    Mode  of  Demonstrating  Matters 

of  Fact. 

That  portion  of  the  argument  by  which  the  existence  of  a 

certain  state  of  facts  is  demonstrated  consists  of  inferences 

from  facts  within  the  general  knowledge  of  the  hearers,  or 

from  established  facts  peculiar  to  the  cause.   Those  universal 

truths  which  all  men  recognize  ;  that  vast  fund  of  practical 

information  which  is  the  common  property  of  mankind ;  the 

current  experience  and  belief  of  the  community ;  the  special 

50 


OF   FORENSIC    ORATORY.  §  6l 

matters  with  which  his  audience  maybe  familiar ;  the  known 
character  and  history  of  the  parties  ;  the  demeanor,  interest, 
and  apparent  credibility  of  witnesses;  matters  attested  by 
documentary  or  uncontradicted  evidence  ;  —  all  furnish  ar- 
guments by  which  the  truth  or  falsehood  of  any  allegation  of 
fact  may  be  established.  These  arguments  address  them- 
selves to  ideas  already  operating  in  the  mind  of  the  hearer, 
and  present  the  disputed  proposition  to  these  ideas  as  to  a 
test  or  touchstone  by  which  the  truth  may  be  detected  and 
declared.  In  our  modern  practice  the  attempt  to  prove 
disputed  facts  by  means  of  witnesses  occupies  so  large  a 
portion  of  the  time  devoted  to  the  trial  of  a  cause,  and  the 
jury  are  so  constantly  enjoined  to  decide  the  issues  according 
to  the  evidence  presented  to  them,  that  a  detailed  examina- 
tion of  the  testimony  appears  to  be  the  principal,  if  not  the 
only,  method  of  arriving  at  the  truth.  The  advocate  must 
not  be  misled  by  this  appearance.  To  reconcile  conflicting 
statements,  to  compare  opposing  witnesses  with  one  another 
and  determine  their  respective  credibility,  to  sift  the  grain  of 
truth  out  of  the  chaff  of  immaterial  and  inconsistent  evi- 
dence, is  a  task  which  no  ordinary  jury,  even  with  the  aid  of 
the  best  advocacy,  is  able  to  perform.  Except  in  issues 
where  the  evidence  on  one  side  overwhelms  and  sweeps 
away  the  evidence  upon  the  other,  —  issues  in  which,  there- 
fore, there  is  little  room  for  doubt,  —  the  decision  of  the 
jury  is  almost  always  based  upon  some  general  principle 
which  in  their  view  includes  and  governs  the  disputed  point, 
or  on  some  salient  fact  by  which  the  issue  is  distinctly  brought 
into  relation  with  their  preconceived  ideas.  The  value  of 
any  fact  as  a  ground  of  argument  is,  therefore,  in  proportion 
to  its  harmony  with  these  general  principles  and  previous 
ideas.  Circumstantial  evidence  derives  its  weight  from  the 
connection  which  it  establishes  between  the  fact  in  issue  and 
the  universal  truths  already  known.  Hence,  while  it  is  often 
necessary  that  conflicting  testimony  should  be  introduced, 

51 


§  6l  FORENSIC   ORATORY. 

and  utilized  in  the  argument  as  far  as  seems  expedient,  the 
advocate  who,  in  his  zeal  to  vindicate  his  witnesses,  loses 
sight  of  the  great  facts  and  principles  by  which  the  jury  are 
certain  to  be  guided  in  their  estimation  of  the  evidence  and 
their  judgment  of  the  cause,  neglects  the  strongest,  and  the 
only  sure,  means  of  establishing  the  truth  of  his  positions. 

§  62.  The  Argument :  Mode  of  Demonstrating  Matters 
of  Law. 
The  arguments  by  which  legal  rules  are  demonstrated 
and  applied  are  drawn  from  the  existing  knowledge  of  the 
hearers,  and  from  the  recognized  repositories  of  the  law. 
Many  of  the  great  principles  of  law  require  no  proof.  Em- 
balmed in  venerable  and  familiar  maxims,  they  are  deposited 
in  the  memories  of  all  men,  and  there  subsist  as  universal 
and  impregnable  ideas.  Others,  less  important  and  familiar, 
are  proved  by  the  production  of  authorities,  or  are  stated  by 
the  advocate  subject  to  confirmation  or  correction  by  the 
court.  Like  other  universal  ideas,  the  former  exercise  over 
the  auditors  a  controlling  influence.  These  principles 
themselves,  and  the  conclusions  which  are  drawn  from  them, 
furnish  the  strongest  and  the  simplest  arguments.  The  ad- 
vocate who  employs  himself  with  these  escapes  from  the 
confusion  which  a  conflict  of  authorities  occasions,  and  the 
dismay  which  the  correction  of  his  doctrines  by  the  court 
involves.  So  far  as  he  identifies  the  rules  which  he  endeavors 
to  enforce  with  the  great  maxims  of  the  law,  so  far  does  he 
address  ideas  which  are  already  governing  his  hearers,  and 
necessitate  their  favorable  judgment. 

§  63.    The  Appeal :  its  Purpose  and  Scope. 

The  methods  by  which  the  advocate   causes   the  ideas, 

which  are  developed  by  his  statement  and  his  argument,  to 

operate  with  controlling  energy  upon  the  minds  of  his  hearers 

differ  in  no  substantial  feature  from  those  which  characterize 

52 


OF   FORENSIC   ORATORY.  §  64 

every  act  of  oratory.  He  undertakes  to  move  his  auditors  • 
from  a  condition  of  indifference  or  hostility  to  one  of  inter- 
est and  effective  favor.  In  order  to  accomplish  this,  he  must 
approach  them,  identify  himself  with  them,  and  accompany 
them  to  the  conclusion  which  he  desires.  He  must  carry 
his  statement  and  his  argument  into  the  boundaries  of  their 
intellectual  domain,  and  adapt  his  thoughts,  his  language, 
and  his  manner  to  their  own.  Starting  from  their  accus- 
tomed ideas,  at  the  point  where  he  has  brought  the  ideas  of 
his  cause  into  relation  with  them,  he  must  proceed  from 
step  to  step,  as  each  new  vantage  ground  is  gained,  without 
deviation  or  cessation,  until  he  brings  them  to  the  act  of 
judgment.  And  all  the  while  he  must  not  for  an  instant 
relax  his  hold  upon  their  hearts  and  minds,  but  keep  them 
firmly  in  his  grasp  by  uttering  his  ideas  in  the  most  attractive 
language,  and  pressing  them  home  by  striking  illustrations 
and  conspicuous  examples. 

§  64.    The  Appeal :    Difficulties  to  be  Encountered. 

In  some  respects  this  portion  of  his  labors  presents  pecu- 
liar difficulties  to  the  advocate.  In  sacred  oratory,  and  even 
in  the  other  forms  of  political  oratory,  there  is  a  natural  rela- 
tionship and  sympathy  between  the  audience  and  the  orator. 
The  subject  of  discourse  has  some  degree  of  personal  inter- 
est for  both,  and  often  their  religious  or  political  proclivities 
render  the  establishment  of  a  community  of  thought  and 
feeling  easy  and  secure.  No  such  advantages  attend  the 
forensic  orator.  The  cause  at  bar  is  one  in  which  his  audi- 
tors have  no  concern,  in  which  his  own  interest  is  transient 
and  accidental,  and  which  ordinarily  has  no  such  connection 
with  the  social  or  political  condition  of  either  of  them  as  to 
find  a  common  ground  for  its  promotion  in  their  common 
welfare.  The  advocate  and  his  hearers  are  also  generally  at 
the  antipodes  of  human  occupations  and  ideas.  The  edu- 
cated lawyer,  delving  among  his  books,  feeding  his  mind  on 

53 


§  64  FORENSIC   ORATORY. 

abstract  principles,  and  habitually  steeling  his  heart  against 
those  sympathies  and  aspirations  which  almost  all  other  men 
permit  to  rule  their  lives,  has  little  real  fraternity  with  the 
sturdy  yeoman  who  lives  from  his  heart  outwards,  and  occu- 
pies his  thoughts  and  hands  with  the  hard,  tangible  realities 
of  active  life.  The  training  of  the  advocate  leads  him  away 
from,  not  toward,  his  ordinary  hearer,  and  therefore,  when  they 
look  each  other  in  the  face  across  the  narrow  limits  of  the 
cause,  there  is  between  them  an  abyss  far  wider  than  any 
other  orator  is  called  to  span.  The  task  to  be  performed, 
however,  is  the  same.  The  advocate  must  cross  this  abyss ; 
he  must  get  to  his  hearers,  no  matter  how  far  he  goes  out  of 
himself ;  and,  with  whatever  violence  to  his  own  tastes  and 
wishes,  he  must  remain  with  them  until  his  prize  is  won.  In 
this  self-abandonment,  in  this  identification  of  himself  with 
them,  there  is  no  paltry  artifice,  no  ignoble  descent,  nothing 
unworthy  of  himself  or  them.  The  law  which  makes  them 
judges  of  his  cause  imposes  upon  him  the  duty  of  presenting 
it  to  them  in  a  manner  suited  to  their  comprehension,  and 
he  serves  justice  best  who  brings  them  with  the  utmost  cer- 
tainty to  swift  and  righteous  judgment. 

§  65.     The  Appeal :  its  Oratorical  Limitations. 

The  law  of  constant  progress  toward  his  desired  end  com- 
pels the  forensic  orator  to  avoid  many  of  those  diversions 
which,  in  other  forms  of  oratory,  are  sometimes  permissible. 
For  him  there  is  no  pleasant  description,  no  amusing  anec- 
dote, even  no  strife  of  wit  unless  it  bears  directly  on  the 
subject  of  discussion  and  stimulates  the  ideas  of  his  hearers 
on  the  points  involved.  While  nothing  useful  is  to  be  dis- 
carded, nothing  useless  is  to  be  intruded,  but  with  his  own 
gaze  riveted  on  the  ideas  embodied  in  the  decision  which  he 
wishes  to  obtain,  he  presses  on,  with  constantly  increasing 
energy,  toward  the  end  desired.  Here  is  the  secret  of  the 
wonderful  success  which  has  attended  the  brief  orations  of 
54 


OF  FORENSIC   ORATORY.  §   66 

the  great  advocates.  While  others  have  been  led  by  their 
erroneous  ideas  of  oratory  to  occupy  their  moments  in 
instructing  or  in  pleasing  as  well  as  in  convincing  and  per- 
suading men,  these  orators  have  set  aside  all  purposes  save 
the  supreme  purpose  of  controlling  the  will  of  their  audience, 
and,  by  a  few  rapid  passages  of  tremendous  force  and  clear- 
ness, have  defined,  convinced,  and  persuaded  in  the  fraction 
of  an  hour. 

§  66.     The  Appeal :    its  Rhetorical  Limitations. 

The  means  by  which  the  advocate  enchains  the  attention 
of  his  hearers,  and  suits  his  language  to  their  varying  thoughts, 
consists  in  the  employment  of  the  same  rhetorical  figures 
which  are  required  in  other  forms  of  oratory.  Yet  even 
here  the  forensic  orator  is  restricted  more  than  any  other. 
The  central  idea  he  presents  is  duty.  The  impulses  which 
attend  this  idea,  as  he  represents  it,  are  necessarily  few,  and 
are  by  no  means  the  strongest  and  most  absorbing  of  those 
which  grow  out  of  the  natural  dispositions  of  the  heart.  His 
whole  oration  gathers  thence  a  character  of  moderation  and 
sobriety,  not  necessarily  attendant  on  any  other  form  of 
oratory,  except  in  those  rare  cases  where  the  issues  of  his 
cause  are  calculated  to  excite  intense  emotions.  Hence  in 
his  choice  of  epithets  and  metaphors,  as  well  as  in  his  man- 
ner and  delivery,  dignity  and  earnestness  appear  rather  than 
vehement  and  enthusiastic  fervor.  A  plain  and  simple  mode 
of  illustration,  a  chaste  and  sober  ornament,  a  self-contained 
and  courteous  deportment,  are  all  that  is  appropriate  to  the 
great  majority  of  the  causes  that  he  seeks  to  gain.  The  jury 
are  not  won  by  noise  and  bluster ;  they  do  not  sit  to  weep 
over  the  common  ills  of  life,  especially  when  suffered  by  such 
persons  as  do  not  hesitate  to  expose  them  to  the  public  eye. 
They  sit  to  judge  ;  and,  conscious  of  their  duty,  they  will 
most  readily  follow  him  who  gives  to  them  the  clearest  ideas,  the 
best  arguments,  and  the  strongest  reason  to  rely  upon  his  word. 

55 


§  67  FORENSIC   ORATORY. 


CHAPTER  VII. 

OF   PRACTICAL   ORATORY. 

§  67.     Practical  Oratory  :   Invention. 

Every  oration  consists  of  one  or  more  ideas,  conceived  in 
the  mind  of  the  orator,  and  by  him  arranged,  expressed  in 
language,  and  orally  delivered  to  his  hearers.  The  act  of  the 
orator  in  conceiving  those  ideas  of  which  his  oration  is  to  be 
composed  is  called  Invention.  It  may  consist  in  the  pro- 
duction of  ideas  never  before  conceived  by  any  one,  or  in 
the  collection  and  adoption  of  ideas  already  conceived  and 
expressed  by  others.  In  either  ease  the  act  is  appropriately 
named,  since,  though  the  thought  is  old,  its  application  to  the 
present  subject  is  a  true  invention. 

§  68.     Practical   Oratory  :    Expression. 

The  ideas  thus  collected  are  also  to  be  suitably  expressed. 
The  idea  actually  conveyed  to  the  mind  of  the  hearer  is  the 
idea  that  he  attaches  to  the  words  and  phrases  which  the 
orator  employs.  Not  only,  therefore,  must  the  language  of 
the  orator  accurately  represent  his  own  idea,  but  it  must  be 
adapted  to  the  immediate  and  unerring  comprehension  of 
his  auditors.  A  single  word  which  fails  in  either  of  these 
requisites  confuses  and  disturbs  the  intellectual  operations  of 
the  hearer,  and  dims  the  clearness  of  the  conceptions  which 
he  already  entertains.  Language,  however,  serves  not  merely 
to  convey  ideas,  but  also  to  intensify  and  to  adorn  them. 
The  same  idea  which,  when  expressed  in  certain  words,  falls 
unavailingly  upon  the  ear,  if  clothed  in  other  language  strikes 
the  mind  with  overwhelming  power.  The  proper  choice  of 
56 


OF   PRACTICAL   ORATORY.  §  70 

words,  and  their  correct  construction  into  sentences  and  peri- 
ods, thus  becomes  a  matter  of  the  highest  import  to  the 
orator.  By  means  of  these  he  can  extenuate  opposing  ideas 
and  destroy  their  practical  antagonism,  and  at  the  same  time 
so  intensify  his  own  that  they  will  operate  with  all  the  energy 
which  the  character  of  the  ideas  themselves  permits. 

§   69.     Practical  Oratory :   Arrangement. 

The  clearness  with  which  any  idea  is  conceived,  and  the 
energy  with  which  it  operates  in  the  production  of  an  impulse, 
depend  to  some  extent  on  its  relation  to  other  ideas  which 
are  concurrently  imparted  to  the  mind.  With  reference  to 
every  individual  there  is  a  certain  sequence  in  which  a  series 
of  ideas  must  be  presented  in  order  that  each  idea  may  exert 
upon  him  its  maximum  of  force,  and  in  every  oration  that 
arrangement  of  ideas  which  will  produce  the  strongest  impres- 
sion on  the  average  auditor  is  the  one  which  the  orator  must 
discover  and  adopt.  The  movement  of  the  human  mind 
toward  any  action  is,  in  its  great  outlines,  usually  the  same. 
Indifference  or  hostility  yield  to  favor,  favor  to  conviction, 
conviction  to  persuasion,  persuasion  to  determination.  In 
their  great  outlines,  also,  all  orations  are  alike.  They  first 
conciliate,  then  convince,  and  then  persuade.  But  in  direct- 
ing any  individual  mind  along  this  pathway  there  are  many 
minor  details  to  be  considered  and  arranged  ;  and  hence,  sub- 
ordinate to  this  great  outline,  there  is  another,  which  changes 
in  each  oration  as  the  subject  or  the  auditor  or  the  circum- 
stances may  demand.  The  orator  must  have  regard  for  both 
of  these,  and  so  associate  his  ideas  that  not  only  will  each 
exercise  its  greatest  force,  but  that  the  series,  as  a  whole,  will 
produce  the  most  profound  impression  on  his  audience. 

§  70.     Practical  Oratory  :  Delivery. 

The  oral  communication  to  the  hearers  of  the  ideas  thus 
expressed  has  justly  been  regarded  as  the  most  important 

57 


§  yo  FORENSIC   ORATORY. 

part  of  oratory.  On  it  the  auditor  depends  entirely  for  his 
perception  of  the  ideas  which  the  orator  endeavors  to  con- 
vey, and  from  it  those  ideas  mainly  derive  the  energy  with 
which  they  operate  upon  his  mind.  No  force  in  the  ideas 
themselves,  no  beauty  and  aptitude  of  language,  can  ever 
compensate  for  want  of  excellence  in  this  respect.  The 
masters  of  the  art  have  placed  it  so  far  above  all  others  that 
they  have  been  regarded  as  esteeming  it  to  be  the  only 
necessary  and  characteristic  element  of  oratory.  Demos- 
thenes, when  asked  what  he  regarded  as  the  chief  excellence 
of  oratory,  gave  to  delivery  the  first,  the  second,  and  the 
third  place,  as  though  he  looked  upon  it  as  alone  essential. 
Cicero  says  :  "  Delivery  has  the  sole  and  supreme  power  in 
oratory ;  without  it,  a  speaker  of  the  highest  intellect  can  be 
held  in  no  esteem ;  with  it,  one  of  moderate  abilities  may 
surpass  those  who  otherwise  possess  the  loftiest  genius." 
Certain  it  is  that  no  auditory  can  endure  with  patience,  or 
regard  with  favor,  an  orator  whose  utterance  is  unintelligible, 
or  whose  action  is  uncouth,  and  that,  on  the  other  hand, 
the  shallowest  ideas  are  often  eagerly  received  when  com- 
municated with  a  distinct  and  musical  voice  and  a  pleasing 
and  appropriate  gesticulation. 

§  71.    Practical   Oratory :  its  Divisions. 

In  the  preparation  and  delivery  of  an  oration  the  orator 
thus  employs  four  different  processes :  Invention,  Expres- 
sion, Arrangement,  Delivery.  Invention  is  concerned  with 
the  collection  and  preparation  of  ideas  ;  Expression,  with  the 
selection  of  language  communicating  these  ideas,  and  its  con- 
struction into  sentences  and  periods  ;  Arrangement,  with  the 
order  of  their  presentation ;  Delivery,  with  the  use  of  voice 
and  gesture  in  impressing  them  upon  the  audience.  To 
the  consideration  of  each  of  these  processes,  in  its  applica- 
tion to  Forensic  Oratory,  the  Second  Part  of  this  work  is 
devoted. 
58 


PART     II. 

OF  THE  PRACTICE  OF  FORENSIC  ORATORY. 


BOOK    I. 
OF   INVENTION. 

§  72.    Invention  Defined. 

Invention  is  the  act  by  which  an  orator  produces  in  his 
own  mind  the  ideas  which  are  to  be  employed  in  his  ora- 
tion. These  ideas  must,  in  the  first  place,  be  connected 
with  the  contemplated  act.  As  every  voluntary  action  is 
the  result  of  certain  impulses  which  are  themselves  engen- 
dered by  ideas,  it  is  evident  that  no  ideas  can  generate  an 
impulse  toward  that  action  unless  they  are  in  some  degree 
related  to  it.  The  number  and  character  of  available  ideas 
are  thus  determined  by  the  nature  of  the  contemplated  act. 
These  may  be  few  or  numerous,  weak  or  powerful.  If  few 
or  weak,  it  is  a  misfortune  which  cannot  be  avoided  or 
remedied  by  the  employment  of  ideas  foreign  to  the  act. 
If  numerous  and  powerful,  all  may  be  included,  or  the 
orator  may  select  from  them  such  as  the  exigencies  of 
the  case  require. 

§  73.  Invention :  Ideas  must  Arouse  an  Impulse 
toward  the  Proposed  Act. 
In  the  second  place,  the  ideas  employed  in  an  oration 
must  engender  or  stimulate  an  impulse  toward  the  con- 
templated act.  Other  ideas,  although  perhaps  related  to 
the  act,  so  far  from  promoting  the  purpose  of  the  orator, 

59 


§  73  FORENSIC   ORATORY. 

tend  rather  to  its  hindrance  and  defeat.  They  divert  the 
attention  of  the  auditor  from  the  object  on  which  all  his 
thoughts  should  be  concentrated.  They  interrupt  that  con- 
stant movement  of  his  mind  by  which  alone  conviction  and 
persuasion  are  attained.  And  hence,  except  in  cases  where 
the  intensity  of  the  emotions  generated  by  appropriate  ideas 
demands  relief  in  order  that  reason  and  judgment  may  regain 
control,  ideas  which  do  not  excite  an  impulse  toward  the  act 
should  never  be  employed. 

§  74.    Invention :  Ideas  must  be  Suited  to  the  Hearers 
and  the  Occasion. 

In  the  third  place,  the  ideas  employed  in  an  oration  must 
be  suited  to  the  hearer  and  to  the  occasion.  The  power  of 
an  idea  to  arouse  its  corresponding  impulse  depends  largely 
on  the  susceptibility  of  the  person  to  whom  it  is  addressed, 
and  on  the  conditions  under  which  it  is  presented.  The 
value  of  an  idea  to  the  orator  cannot  be  measured  by  its 
intrinsic  force,  nor  by  the  strength  of  the  impression  which  it 
makes  on  his  own  mind.  The  previous  ideas  and  disposi- 
tions of  the  auditor,  as  well  as  the  circumstances  which 
surround  him,  may  augment  or  diminish  its  effect  upon 
him,  and  therefore  in  the  light  of  these  concurrent  influ- 
ences must  the  actual  service  it  will  render  be  examined 
and  estimated. 

§  75.     Invention  :   its  Integral  Parts. 

The  act  of  invention  thus  consists:  (i)  In  determining 
the  nature  of  the  contemplated  act,  the  character  and  number 
of  the  impulses  which  prompt  it,  and  the  ideas  by  which  in  the 
proposed  actors  these  impulses  may  be  excited  ;  (2)  In  ascer- 
taining the  sources  from  which  these  ideas  are  to  be  derived  ; 
and  (3)  In  collecting  and  classifying  these  ideas  preparatory 
to  their  arrangement  and  expression. 


60 


IDEAS   SERVICEABLE  IN   FORENSIC   ORATORY.    §  JJ 
CHAPTER  I. 

OF  THE   IDEAS   SERVICEABLE   IN    FORENSIC   ORATORY. 

§  76.    The    Proposed    Act   in    Forensic   Oratory   always 
Includes  the  Idea  of   a  Duty  to  be  Performed. 

The  contemplated  act,  in  forensic  oratory,  is  the  favorable 
decision  of  a  cause.  The  proposed  actors  are  the  judge  or 
jury,  upon  whom  rests  the  legal  obligation  of  rendering  a 
decision  in  accordance  with  the  established  facts  and  with 
the  rules  of  law.  The  province  of  the  advocate  is  to  identify 
in  their  minds  the  desired  decision  with  that  required  by  law, 
and  induce  them  to  perform  their  duty  by  giving  a  judgment 
in  his  favor.  In  every  cause  there  is,  therefore,  at  least  one 
impulse  which  urges  the  actors  toward  the  contemplated 
act,  —  the  impulse  to  fulfil  their  legal  obligation.  This  im- 
pulse necessarily  arises  in  their  hearts  whenever  the  idea  of 
legal  duty  is  developed  in  their  minds.  The  advocate  devel- 
ops this  idea  by  demonstrating  that  his  claims  as  to  the  facts 
are  true,  and  that  his  conclusions  as  to  the  law  are  correct. 

§  77.  In  Forensic  Oratory  the  Idea  of  Duty  is  always 
Derived  from  the  Issues  in  the  Cause. 
If  it  were  possible  in  any  cause  that  both  the  facts  and 
the  law  should  be  uncontroverted,  this  idea  of  legal  obligation 
would  present  itself  at  once  to  the  attention  of  the  jury  or  the 
judge.  The  oration  of  the  advocate  would  then  consist  of 
a  statement  of  the  nature  of  the  cause,  an  explanation  of 
the  judgment  which  the  law  required,  and  an  appeal  to  the 
inherent  sense  of  duty.  But  as,  in  practice,  every  cause  is 
controverted  either  as  to  facts  or  law,  and  as  on  the  decision 
of  these  subordinate  controversies  depends  the  final  judgment 
of  the  cause  itself,  the  idea  of  duty  must  be  developed  out  of 

61 


§  7J  FORENSIC   ORATORY. 

the  ideas  involved  in  these  controversies  by  processes  of 
demonstration.  Hence,  the  first  duty  of  the  advocate,  in 
seeking  for  material  for  his  oration,  is  to  ascertain  and  thor- 
oughly examine  these  subordinate  controversies. 

§  78.  Every  Cause  Presents  one  or  more  Primary  Issues. 
Every  cause,  civil  or  criminal,  consists  of  one  or  more 
propositions,  either  of  fact  or  law,  affirmed  on  one  side  and 
denied  upon  the  other.  If  but  a  single  proposition  is  affirmed, 
the  issue  is  a  simple  one,  and  the  denial  is  as  comprehensive 
as  the  affirmation.  Where  two  or  more  propositions  are 
affirmed,  the  denial  may  extend  to  all,  resulting  in  a  complex 
issue,  or  it  may  be  confined  to  one,  and  constitute  a  simple 
issue.  In  trespass  quare  dausum,  for  example,  the  plaintiff 
must  affirm  possession  in  himself,  and  an  unlawful  entry  by 
the  defendant.  The  defendant  may  deny  the  entry  or  the 
possession,  thus  tendering  a  single  issue,  or  by  a  general 
denial  he  may  raise  a  complex  issue,  and  put  the  plaintiff 
upon  proof  of  both.  Again,  in  burglary  the  commonwealth 
affirms  that  the  defendant  broke  and  entered,  in  the  night 
season,  with  felonious  intent,  into  the  dwelling  of  another. 
A  general  denial  creates  a  complex  issue,  including  seven 
ingrediental  issues,  on  each  of  which  the  commonwealth 
must  establish  its  position  beyond  reasonable  doubt.  Or  the 
defendant  may  in  fact,  if  not  in  form,  rest  his  defence  upon 
a  single  issue  of  the  seven,  and,  successfully  maintaining 
this,  attain  the  same  result  as  if  the  seven  had  been  decided 
in  his  favor. 

§  79.     A    Primary  Issue  may  Present   Several  Subordi- 
nate Issues,  on  any  One  of  •which  the  Decision 
of  the  Cause  may  Turn. 
Each  of  these  primary  issues  may  in  its  turn  contain  other 
issues,  either   simple   or  complex,  whose   determination   is 
essential  to  the  decision  of  the  issue  which  includes  them ; 
62 


IDEAS    SERVICEABLE   IN   FORENSIC    ORATORY.    §  8 1 

and  under  these  still  lesser  issues  may  be  found,  until  the 
whole  cause  may  be  made  to  rest  upon  some  single  indi- 
visible fact,  or  on  some  simple  dictum  of  the  law.  This  single 
fact  or  dictum  then  becomes  the  actual  issue  in  the  cause, 
the  only  matter  in  dispute,  the  final  test  of  legal  obligation. 
Thus,  in  the  charge  of  burglary,  the  defendant  may  deny  the 
breaking,  on  the  ground  that  the  door  by  which  he  entered 
was  ajar,  and  on  this  fact  alone  the  question  of  his  guilt  or 
innocence  depends.  Or  in  a  trespass,  if  the  defendant 
justifies  his  entry  for  that  he  was  an  officer  duly  serving  civil 
process,  and  this  be  met  with  an  allegation  that  his  entry  was 
upon  the  Sabbath  before  the  setting  of  the  sun,  the  entire 
cause  may  be  reduced  to  the  question  as  to  the  moment 
when  defendant  entered  on  the  plaintiffs  land. 

§  80.     Ultimate  and  Decisive  Issues  to  be  Ascertained 
and  Presented  for  Decision. 

Whenever  the  issue  can  be  thus  simplified  and  concen- 
trated in  one  single  proposition,  the  labor  both  of  the  advocate 
and  of  his  auditors  is  rendered  short  and  easy.  Confusion 
and  obscurity,  as  far  as  is  ever  possible,  are  thereby  excluded. 
The  relevancy  of  the  proof  is  clearly  seen  and  the  idea  of 
legal  obligation  is  easily  developed  and  applied.  Justice  as 
well  as  the  true  interest  of  both  parties,  therefore,  requires 
that  the  cause  should  be  presented  to  its  arbiters  with  issues 
as  few  and  as  well  defined  as  the  nature  of  the  controversy 
will  permit. 

§  81.  To  Discover  the  Ultimate  Issue  is  the  Advocate's 
First  Duty. 
The  discovery  of  this  last,  decisive  issue  is  the  first  duty  of 
the  advocate.  This  constitutes  the  cause.  This  is  the  only 
proper  subject-matter  of  the  oration.  The  ideas  which  lead 
his  hearers  to  decide  it  in  his  favor  are  all  with  which  he 
need  concern  himself.  If  he  can  induce  them  to  agree  with 
him  on  this,  his  cause  is  won ;  if  not,  his  cause  is  lost. 

6:, 


§  82  FORENSIC   ORATORY. 

§  82.  Difficulties  in  Discovering  the  Ultimate  Issue  Great 
but  not  Insuperable. 
The  difficulties  in  the  way  of  this  discovery,  though 
great,  are  not  insuperable.  They  exist  not  so  much  in  the 
cause  itself  as  in  the  obstacles  which  hinder  the  advocate 
from  examining  and  understanding  it,  and  these  by  time, 
tact,  and  patience  can  almost  always  be  removed.  The 
advocate  who  begins  his  labors  by  a  candid  and  exhaustive 
investigation  of  his  case,  with  the  sole  purpose  of  ascertaining 
its  exact  merits,  and  not  with  the  design  of  finding  some 
method  of  winning  it,  right  or  wrong,  will  generally  arrive 
sooner  or  later  at  a  clear  view  of  the  points  upon  which  its 
decision  must  eventually  turn. 

§  83.  Difficulty  of  Discovering  the  Ultimate  Issue  Greater 
for  the  Affirmative  than  for  the  Negative. 
The  difficulties  which  the  affirmative  encounters  in  discover- 
ing the  issue  are  much  more  formidable  than  those  presented 
to  the  negative.  When  the  affirmative  consists  of  several  prop- 
ositions the  affirmant  cannot  know,  however  accurately  he 
may  conjecture,  whether  a  single  one  or  all  will  be  disputed, 
and  hence  he  must  investigate  the  answers  or  evasions  that 
are  possible  to  each,  and  determine  which  are  likely  to  be 
urged.  The  denier,  on  the  other  hand,  in  whom  resides  the 
option  to  contradict  one  point  or  many,  can  easily  and 
immediately  decide  what  facts  or  legal  rules  shall  constitute 
the  issue.  His  first  examination  of  his  case  is  really  but  an 
inquiry  whether  such  an  issue  can  be  found  and  successfully 
maintained. 

§  84.    In  Civil  Cases  Pleadings  are  Designed  to  Present 
the  Ultimate  Issue. 
In  civil  cases  the  pleadings  are  designed  to  lead  the  advo- 
cate directly  to  this  issue.     Under  the  ancient  rules,  they 
must  have   terminated  in   the  affirmation  and  denial  of  a 
64 


IDEAS    SERVICEABLE   IN   FORENSIC   ORATORY.    §  86 

single  fact  or  legal  proposition,  and  the  issue  was  thus  always 
indicated,  if  not  explicitly  defined ;  and  though  under  our 
modern  systems  of  procedure  the  practice  is  less  strict,  and 
complex  issues  may  more  frequently  arise,  yet  where  their 
rules  are  intelligently  followed,  each  separate  issue  is  usually 
determined  with  sufficient  exactness  to  enable  the  careful 
advocate  to  ascertain  the  point  on  which  the  controversy 
turns. 

§  85.  In  Criminal  Causes  the  Pleadings  Rarely  Present 
the  Ultimate  Issue. 

In  criminal  causes,  on  the  contrary,  except  in  some  pecu- 
liar issues,  such  as  autrefois  convict,  etc.,  the  pleadings  afford 
the  prosecutor  very  little  aid.  An  answer  of  not  guilty  puts 
the  commonwealth  on  proof  of  every  material  allegation  con- 
tained in  the  indictment,  and  gives  no  indication  whether 
the  prisoner  will  deny  all  these  allegations,  or  base  his  defence 
on  some  subordinate  fact  which  is  included  in  a  single  one. 
While,  therefore,  in  such  cases  the  defendant  can  forecast 
the  issue  with  entire  certainty,  the  prosecutor  must  ascertain, 
as  best  he  may  from  his  investigation  of  the  evidence  at  his 
command,  where  the  real  stress  of  the  conflict  is  to  come. 

§  86.  Having  Discovered  the  Ultimate  Issue  the  Advocate 
must  next  Search  for  Arguments  to  Support 
his  Claims  in  Regard  to  its  Decision. 

The  issue  having  been  discerned,  the  attention  of  the  advo- 
cate is  next  directed  toward  the  arguments  by  which  the  duty 
of  the  hearers  to  decide  it  in  his  favor  can  be  demonstrated. 
If  the  issue  is  one  of  fact,  and  the  disputed  fact  can  be  sub- 
stantiated by  the  direct  evidence  of  witnesses,  the  argument 
sustaining  it  will  be  of  the  simplest  character,  and  will  con- 
.  sist  in  the  application  of  the  evidence  to  its  proper  subject, 
and  in  demonstrating  the  knowledge  and  integrity  of  those 
from  whom  the  evidence  proceeds.     When  direct  evidence 

5  65 


§  86  FORENSIC    ORATORY. 

of  the  fact  is  wanting,  the  arguments  by  which  it  is  supported 
will  consist  of  inferences  from  other  facts,  either  established 
by  the  evidence,  or  conceded  by  the  parties,  or  known  alike 
to  advocate  and  hearers.  The  direct  testimony  of  a  witness 
that  he  himself  has  paid  a  promissory  note,  or  seen  it  paid, 
requires  no  further  comment  from  the  advocate  than  such 
as  may  be  necessary  to  connect  it  with  the  note  in  question, 
and  to  satisfy  the  hearers  that  the  witness  is  reliable.  The 
same  result  is  reached,  but  by  an  entirely  different  method, 
when  payment  is  inferred  from  the  discovery  of  the  cancelled 
note  in  the  possession  of  the  maker,  from  the  admissions  of 
the  payee  to  third  parties,  or  from  the  lapse  of  time.  In 
issues  of  law,  the  argument  consists  in  applying  to  the  sub- 
ject legal  rules  that  are  well  known  or  are  undisputed  or  are 
stated  by  authority,  or  in  deducing  from  such  rules  the  par- 
ticular propositions  governing  the  cause  at  bar  and  making 
application  of  them  to  the  facts.  An  instance  of  the  former 
is  where  a  prosecutor  proves  that  the  matters  alleged  in  the 
indictment  constitute  a  crime,  by  comparing  them  with  the 
definition  given  by  the  statute  or  the  common  law ;  an  in- 
stance of  the  latter,  where  from  the  constitutional  power  of 
Congress  to  regulate  commerce  the  advocate  contends  for 
its  control  over  the  navigable  waters  of  the  several  States. 

§  87.    Arguments   Useful    only   when   Communicable    to 
the  Hearers. 

In  order  that  an  argument  may  influence  the  hearers,  it  is 
essential  that  they  should  fully  apprehend  the  ideas  of  which 
it  is  composed.  It  is  impossible  to  reason  from  indefinite 
premises  to  definite  conclusions,  or  to  be  convinced  by  dem- 
onstrations whose  constituent  elements  are  unintelligible. 
Whenever,  therefore,  the  ideas  from  which  an  argument 
might  be  constructed  are  not  already  present  in  the  minds  of 
the  hearers,  and  cannot  be  communicated  to  them  in  pur- 
suance of  the  rules  of  evidence,  the  argument  itself  must  be 
66 


IDEAS    SERVICEABLE   IN   FORENSIC   ORATORY.    §  89 

abandoned.  A  fact  which  cannot  be  proved  does  not  exist 
for  forensic  purposes,  unless  it  belongs  to  that  great  body  of 
facts  with  which  all  men  are  supposed  to  be  familiar.  A 
proposition  has  no  force  as  law  unless  prescribed  by  compe- 
tent authority,  or  logically  deducible  from  that  which  is  pre- 
scribed. Thus,  though  the  advocate  may  find  many  ideas 
within  his  case  by  which  light  might  be  thrown  upon  the 
issue,  he  can  only  employ  those  which  already  have  been,  or 
upon  the  trial  can  be,  brought  to  the  knowledge  of  the  jury 
or  the  court. 

§  88.  The  Issues  in  a  Cause  Present  other  Ideas  besides 
that  of  Duty. 
In  addition  to  this  idea  of  duty,  other  ideas  are,  in  most 
cases,  capable  of  rendering  service  to  the  advocate.  Very 
few  are  the  transactions  between  men  which  are  so  bald  of 
every  feature  except  that  of  legal  obligation  as  to  confine  an 
orator  to  this  alone.  •  And  in  the  causes  actually  presented  to 
our  courts,  the  lights  and  shadows  of  human  life  are  always 
sufficiently  reflected  to  suggest  many  thoughts  and  excite 
many  emotions  besides  the  simple  one  of  duty.  The  suit  of 
a  poor  laborer  for  wages  justly  earned  and  unjustly  withheld, 
of  any  person  for  the  redress  of  injuries  arising  out  of  wan- 
tonness or  negligence,  the  prosecution  or  defence  of  any 
criminal,  presents  ideas  engendering  admiration  for  the  hon- 
est and  industrious,  pity  for  the  oppressed  or  injured,  anger 
and  indignation  against  the  unjust  and  perverse.  Even  an 
issue  of  pure  law  often  embraces  questions  of  public  policy, 
or  personal  liberty,  or  domestic  happiness,  by  which  the 
deepest  feelings  of  the  heart  are  stirred. 

§  89.    All  Ideas  to  be  Subordinated  to  the  Idea  of  Duty. 
These  additional  ideas  are,  however,  only  properly  em- 
ployed in  aid  of  the  great  central  one  of  legal  duty.     It  is 
no  part  of  the  purpose  of  a  court  of  law  to  do  general  justice 

67 


§  89  FORENSIC   ORATORY. 

to  the  plaintiff  or  defendant;  its  only  object  is  to  administer 
a  specific  remedy  for  a  specific  wrong.  Whatever  be  the 
character  or  conduct  of  either  party,  he  is  entitled  to  a 
judgment  when  his  claims  as  to  the  issue  are  correct.  An 
insolent  and  oppressive  creditor,  no  less  than  one  who  is 
forbearing  and  considerate,  has  a  right  to  the  payment  of 
his  lawful  debt.  A  powerful  and  wealthy  corporation,  when 
defendant  in  a  suit,  is  entitled  to  the  same  decision  as  if  it 
were  a  meritorious  and  struggling  partnership.  The  obliga- 
tion of  the  judge  and  jury  is  determined  by  the  law  applied 
to  the  established  facts,  and  any  departure  from  this  obligation 
is  a  perversion  of  justice.  While,  therefore,  it  is  proper,  and 
often  highly  advantageous  to  the  advocate,  to  excite  various 
emotions  in  their  hearts  by  which  they  may  be  more  power- 
fully impelled  to  discharge  this  obligation,  it  is  a  prostitution 
both  of  his  powers  and  theirs  to  arouse  these  impulses  in 
order  to  mislead  them,  or  to  induce  them  to  neglect  their 
duty.  The  advocate  who  without  bias  and  with  thoroughness 
investigates  his  cause,  and  discovers  reasonable  grounds  for 
believing  that  his  client  is  in  the  right,  may  in  its  advance- 
ment honestly  and  honorably  employ  all  his  abilities  of  con- 
viction and  persuasion ;  but  every  dictate  of  reason  and 
conscience  forbids  him  to  promote  or  countenance  unjust 
and  groundless  litigation,  or  to  endeavor  to  seduce  courts 
and  juries  from  their  duty,  whatever  sacrifice  of  fame  and 
fortune  his  refusal  so  to  do  seems  likely  to  involve. 

§  90.    Subordinate  Ideas  to  be  Confined  to  the  Issue. 

The  ideas  by  which  these  additional  impulses  are  aroused 
must  also  be  connected  with  the  issue.  The  one  supreme 
thought  of  the  entire  oration  is  that  the  duty  of  the  hearers 
demands  a  judgment  for  the  advocate  upon  the  points  in 
controversy.  Any  idea  which  distracts  their  attention  from 
this  thought,  which  interrupts  their  progress  toward  convic- 
tion and  persuasion  as  to  these  disputed  points,  although  the 
68 


IDEAS    SERVICEABLE   IN   FORENSIC    ORATORY.    §  91 

emotions  it  excites  are  favorable  to  his  client,  is  really  an 
injury  to  his  cause.  The  advocate  must,  therefore,  find  all 
these  ideas  among  the  facts  and  principles  which  constitute 
or  are  connected  with  the  issue,  and,  doing  this,  his  presenta- 
tion of  them  for  collateral  purposes  aids  and  intensifies  their 
operation  on  the  point  of  duty. 

§  91.    Subordinate    Ideas    must    be    Acceptable    to    the 
Hearers. 

Finally,  the  advocate  cannot  be  too  often  reminded  or  too 
constantly  remember  that  no  ideas  on  any  point  avail  him,  if 
they  are  unappreciated  by  or  are  unwelcome  to  his  hearers. 
To  convince  them  and  arouse  them,  he  must  be  compre- 
hended by  them,  and  must  please  them.  And  in  all  his 
search  for  and  selection  of  ideas  he  must  ever  have  in  view 
the  individuals  whom  he  seeks  to  influence,  and  above  all 
else  endeavor  to  secure  material  which  shall  produce  the 
desired  effect  upon  them. 


69 


§  92  FORENSIC   ORATORY. 


CHAPTER  II. 

OF  THE  SOURCES  OF  IDEAS. 

§  92.  Ideas  Available  to  the  Advocate  are  of  Two  Classes : 
Ideas  Derived  from  Matters  Outside  the  Cause. 
The  ideas  available  to  the  orator  are  of  two  classes : 
( i )  Those  which  are  derived  from  matters  outside  the  cause, 
and  are  already  present  in  the  minds  of  his  hearers  as  well 
as  of  himself;  and  (2)  Those  which  are  involved  in  the  cause, 
and  can  in  some  legal  manner  be  communicated  to  them  by 
him.  So  far  as  they  are  applicable  to  his  case,  ideas  of  both 
these  classes  are  of  use  to  him,  and  in  collecting  his  materials 
both  should  be  always  carefully  explored.  The  sources  from 
which  ideas  of  the  first  class  may  be  gathered  are  almost 
innumerable.  The  impressions  made  upon  the  minds  of 
men  by  tradition,  reading,  observation,  and  experience  relate 
to  every  object  in  the  universe.  Nothing  that  can  be  known 
is  so  mean  or  so  exalted  that  it  may  not  suggest  ideas  by 
which  an  argument  can  be  illustrated,  or  emphasized,  or  con- 
firmed. The  properties  of  matter,  the  phenomena  of  nature, 
the  character  and  habits  of  the  animal  creation,  the  exam- 
ples of  history  and  biography,  the  brilliant  fantasies  of 
poetry  and  romance,  the  crude  and  solid  wisdom  of  proverbs 
and  maxims,  the  facts  of  science,  the  devices  of  mechanics, 
the  mysterious  processes  of  the  arts,  in  fine,  everything  that 
eye  has  ever  seen,  or  ear  heard,  or  pen  or  voice  communi- 
cated, may  furnish  thoughts  more  forcible  than  even  the 
sworn  evidence  of  witnesses  for  the  conviction  and  persua- 
sion of  his  hearers.  One  limit  only  can  be  placed,  and  that 
the  ever  memorable  one,  that  all  the  matters  from  which 
ideas  of  this  class  can  be  drawn,  for  the  contemplation  of 
his  hearers,  must  be  as  fully  in  their  knowledge  as  his  own. 
70 


OF   THE   SOURCES    OF   IDEAS.  §  94 

§  93.  Ideas  Derived  from  Matters  within  the  Cause  Relate 
to  the  Persons  or  Things  Involved,  or  to  the  Law. 
The  ideas  of  the  second  class  relate  to  matters  included 
in  the  cause  itself.  Ideas  extrinsic  to  the  cause  cannot  be 
communicated  to  his  hearers  by  the  advocate.  If  known  to 
them  already,  as  part  of  that  general  information  of  which  all 
partake,  he  may  employ  them  as  he  will.  But  the  ideas,  which 
they  are  permitted  to  derive  from  him,  are  those  alone  which 
are  relevant  or  material  to  the  issue,  and  may  be  legally  pre- 
sented to  them  by  evidence  or  by  authority.  These  matters 
thus  included  in  the  cause  may  all  be  grouped  in  three  di- 
visions :  (1)  The  persons  in  the  cause;  (2)  The  things  in 
the  cause ;  (3)  The  law  of  the  cause.  Each  of  these 
presents  to  the  advocate  a  field  for  special  and  exhaustive 
investigation. 

§  94.    Ideas  Concerning  the  Persons  in  the  Cause. 

The  persons  in  the  cause  are  the  plaintiff  and  defendant, 
the  witnesses,  the  judge  and  jury,  and  all  others  who  in  any 
manner  actively  contribute  to  create  or  decide  the  contro- 
versy. Every  cause,  civil  or  criminal,  originates  in  some 
alleged  act  or  default,  and  wherever  the  commission  of  this 
act  or  default  by  him  to  whom  it  is  imputed  is  denied,  valuable 
if  not  conclusive  inferences  upon  this  issue  may  be  derived 
from  his  personal  character  and  situation.  When  the  evi- 
dence of  witnesses  is  introduced,  an  inquiry  concerning  the 
witnesses  themselves  often  discloses  whether  or  not  reliance 
can  be  placed  upon  their  testimony.  Careful  investigation 
of  the  history  and  predisposition  of  the  judges  or  the  jury 
may  indicate  the  probable  effect  upon  them  of  particular 
arguments,  and  the  decision  at  which  they  are  likely  to  arrive. 
And  even  as  to  those  whose  connection  with  the  cause  is  col- 
lateral and  remote,  it  is  frequently  profitable  to  inquire  whether 
their  natural  qualities  and  circumstances  render  it  probable 
that  the  acts  attributed  to  them  were  really  performed. 

71 


§  95  FORENSIC    ORATORY. 

§  95.  Ideas  Concerning  the  Persons  in  the  Cause :  then- 
Character  and  Circumstances. 
The  matters  concerning  the  persons  in  the  cause  include  : 
(i)  Their  characters  and  circumstances ;  (2)  Their  racial  and 
political  relations ;  (3)  Their  social  relations ;  (4)  Their  inter- 
est in  the  cause ;  (5)  Their  actual  connection  with  the  cause. 
A  knowledge  of  the  personal  character  and  circumstances 
of  any  individual  is  always  of  great  value  in  determining  a 
question  as  to  his  past  or  future  conduct.  The  age,  sex, 
occupation,  wealth  or  poverty,  bodily  strength  and  consti- 
tution, mental  and  moral  habits,  education,  opportunities, 
associates,  —  all  these,  and  many  other  facts  which  enter 
into  the  personality  and  situation  of  every  human  being, 
form  a  basis  for  strong  arguments  in  reference  to  guilt 
or  innocence,  justice  or  partiality,  veracity  or  falsehood. 
Every  voluntary  act  or  omission  is  in  some  degree  the  re- 
sult of  a  long  series  of  causes,  among  which  all  these  various 
particulars  may  be  embraced,  and  an  examination  of  those 
causes  will  generally  lead  to  a  correct  conclusion  in  regard 
to  the  acts  or  the  defaults  of  the  individual  under  any  given 
circumstances.  That  a  young  woman  of  wealth,  of  sound 
mental  and  moral  training,  and  without  evil  associations, 
should  rob,  or  steal,  or  perjure  herself,  is  almost  incredible. 
That  a  man  of  low  birth,  of  vicious  surroundings,  of  ill- 
developed  moral  nature,  without  work  and  without  money, 
should  testify  falsely  or  commit  a  crime  is  highly  probable. 
And  upon  any  issue  whether  a  certain  person  did  or  will 
do  some  specific  act,  the  readiest  and  most  convincing 
proof,  apart  from  direct  evidence,  is  drawn  from  these  par- 
ticulars in  the  character  and  situation  of  the  individual 
himself.  In  this  field  of  inquiry  are  also  found  innumer- 
able tests  by  which  the  truth  or  falsehood  of  other  matters 
may  be  demonstrated.  No  matter  what  fact  may  be  in 
dispute,  if  it  involves  an  action  or  a  neglect  to  act,  light  may 
be  thrown  upon  it  from  some  one  of  these  characteristics 
72 


OF  THE   SOURCES   OF  IDEAS.  §  96 

and  circumstances.  The  execution  of  an  instrument  may  be 
defeated  or  established  by  the  production  of  the  handwriting 
of  the  alleged  grantor.  A  claim  for  money  loaned  may  be 
denied  by  showing  that  at  the  time  the  pretended  lender 
was  himself  in  need.  Theft  of  a  heavy  package  by  the 
prisoner  may  be  successfully  disproved  by  making  manifest 
his  physical  inability  to  take  and  carry  it  away.  It  is  in  this 
field  that  the  human  mind  naturally  and  instinctively  seeks 
for  the  solution  of  every  question  as  to  the  authorship  of 
certain  acts,  and  often  rests  its  faith  more  firmly  on  the 
inferences  which  it  draws  from  them  than  on  the  positive 
evidence  of  others.  This  fact  indicates  its  value  to  the 
advocate,  not  only  for  the  number  of  the  ideas  with  which  it 
may  supply  him,  but  for  the  weight  with  which  every  argu- 
ment composed  of  those  ideas  will  naturally  impress  itself 
on  the  conviction  of  his  hearers. 

§  96.  Ideas  Concerning  the  Persons  in  the  Cause:  their 
Racial  and  Political  Relations. 
The  racial  and  political  relations  of  an  individual  also  afford 
many  indications  as  to  his  probable  conduct,  whether  as  a 
party,  a  witness,  or  a  judge.  Every  race  of  men  has  its 
peculiar  modes  of  thought,  its  moral  standards,  by  which  it 
measures  and  determines  the  phenomena  of  social  life.  The 
differences  between  them  in  these  days  of  intimate  commer- 
cial intercourse  are  not  as  striking  as  of  old,  but  yet  with  few 
exceptions  the  individuals  of  these  races  are  in  many  respects 
wholly  different  men,  and  in  their  conduct  under  given  con- 
ditions will  differ  very  widely  from  each  other.  Every  student 
of  social  science  soon  discovers  that  among  the  different 
nations  of  the  earth  the  widest  diversity  of  opinion  prevails 
concerning  the  sanctity  of  domestic  life,  the  value  and  inalien- 
ability of  human  liberty,  the  right  of  personal  redress  for  real 
or  fancied  wrongs,  the  duty  of  the  individual  to  his  fellow 
citizens  or  to  the  state.     In  our  great  American  cities,  where 

73 


§  g6  FORENSIC    ORATORY. 

men  of  all  races  congregate  together,  these  differences  are 
so  well  understood  that  from  the  nature  of  an  act  alone  the 
skilled  investigator  often  immediately  conjectures  the  nation- 
ality of  him  by  whom  it  was  committed.  The  difference 
between  the  credibility  of  witnesses  of  the  more  and  less 
imaginative  races,  at  first  perhaps  a  prejudice,  has  also  by 
experience  been  developed  into  a  fixed  opinon.  Differences 
as  clearly  marked,  though  not  so  numerous  and  great,  often 
prevail  between  men  of  the  same  race  but  of  different  polit- 
ical affiliations.  The  settled  political  opinions  of  a  man  are 
the  fruitage  of  his  reason,  observation,  and  experience ;  and 
by  them,  as  manifested  in  his  party  adhesions,  he  may  usually 
be  fairly  judged.  This  is  especially  true  in  our  own  country, 
where  the  discipline  of  school  gives  place  with  a  brief  interval 
to  the  discipline  of  party,  and  the  education  which  began 
with  the  alphabet  and  primer  is  continued  by  the  newspaper 
and  rostrum.  Political  theories  and  relations  thus  estab- 
lished inevitably  influence,  and  sometimes  control,  the  views 
of  individuals  in  reference  to  questions  outside  the  domain 
of  politics ;  and  hence  on  any  proposition  involving,  how- 
ever indirectly,  partisan  ideas  or  interests,  it  is  not  dtfficult 
to  see  that  their  conclusions  will  harmonize  with  these  ideas, 
and  so  to  forecast  their  decision.  A  jury  equally  divided 
between  the  two  great  parties,  if  they  divide  equally  upon 
the  issue,  will  generally  be  found  with  the  six  men  of 
one  party  on  one  side,  and  the  six  men  of  the  other 
party  on  the  other.  The  famous  eight  to  seven  of  the 
Electoral  Commission  contains  a  profound  lesson  to  those 
who  are  accustomed  to  read  the  remote  causes  of  human 
actions  in  the  acts  themselves,  and  illustrates  that  funda- 
mental social  law,  which  in  his  actual  experience  in  lesser 
instances  the  advocate  every  day  discovers  to  be  true,  that 
voluntary  human  action  is  the  net  result  of  immediate  incen- 
tive and  long  indulged  predisposition. 


74 


OF  THE   SOURCES   OF  IDEAS.  §  97 

§  97.  Ideas  Concerning  the  Persons  in  the  Cause :  then- 
Social  Relations. 
The  social  relations  of  an  individual  also  have  considerable 
value  as  indicative  of  the  motives  toward  certain  lines  of 
conduct.  Each  of  the  different  classes  of  society  has  its  own 
prejudices  and  predilections,  its  own  standard  of  good  and 
evil,  its  own  ideas  of  the  true  method  of  meeting  and  of 
solving  the  great  problems  of  human  life.  Men  in  the 
lower  strata  of  society  have  little  temptation  to  make  a  show 
or  to  keep  up  appearances.  Their  actions  usually  'have 
reference  to  physical  and  present  benefits,  and  as  between 
these  and  a  future  abstract  good  they  will  almost  invariably 
endeavor  to  acquire  the  former.  For  the  same  reason,  they 
impose  far  less  restraint  on  their  emotions,  and  do  not 
hesitate  to  manifest  in  words  and  actions  the  passions  and 
desires  that  burn  within.  Men  in  the  higher  walks  of  life 
are  actuated  by  entirely  different  motives.  Their  physical 
necessities  are  well  supplied,  desire  for  show  or  wealth  or 
power,  or  pleasure  becomes  naturally  their  ruling  passion,  and 
their  acts  are  prompted  by  an  impulse  to  secure  the  object  of 
desire.  The  social  discipline  to  which  they  are  subjected  com- 
pels them  to  control  the  exterior  manifestation  of  their  feelings, 
to  mask  the  deadliest  hate  in  smiles,  to  restrain  the  stroke  of 
anger  or  revenge  or  jealousy,  however  strong  the  passion  which 
impels  it.  The  reality  and  effect  of  these  distinctions  find 
indisputable  evidence  in  criminal  statistics.  Assaults,  affrays, 
robberies,  burglaries,  thefts,  bigamy,  manslaughter,  and  other 
similar  crimes,  are  crimes  of  the  lower  and  less  cultured  ranks 
of  men ;  while  forgery,  embezzlement,  and  fraud  in  all  its 
forms,  prevail  more  generally  among  the  higher.  Social  dis- 
tinctions also  create  prejudices  which  demand  attention 
whenever  future  conduct  is  to  be  conjectured.  It  is  almost 
uniformly  true  that  men,  whose  associations  are  confined  to 
their  own  social  rank,  are  strongly  prejudiced  against  those 
whose  station  is  superior  or  inferior  to  theirs.     The  laborer 

75 


§  97  FORENSIC    ORATORY. 

often  regards  the  capitalist  with  antipathy,  and  the  capitalist 
not  infrequently  looks  down  upon  the  laborer  with  contempt. 
When  one  of  these  classes,  as  in  our  system  of  government 
often  happens,  sits  in  judgment  on  the  other,  these  prejudices 
generally  exercise  more  or  less  influence  on  the  judicial  mind, 
and  sometimes  lead  it  far  astray.  The  heavy  verdicts,  which 
the  sturdy  yeomanry  have  sometimes  rendered  against  corpo- 
rations, are  only  an  expression  of  the  same  antagonism  which 
a  jury  of  the  corporators  would  exhibit  toward  a  beggar 
charged  with  vagrancy. 

§  98.  Ideas  Concerning  the  Persons  in  the  Cause :  their 
Personal  Interest  in  the  Cause  itself. 
The  interest  which  an  individual  may  have  in  the  result  of 
certain  actions  of  course  would  not  be  overlooked  in  examin- 
ing into  his  connection  with  those  acts  themselves.  Every 
man  is  governed  by  his  interests,  and  whatever  it  is  for  his 
interest  to  do  he  naturally  will  do  if  he  is  able.  Therefore 
whenever  a  voluntary  act  has  been  done,  and  its  authorship 
is  disputed,  the  presumption  is  almost  conclusive  that  it  was 
done,  or  was  procured  to  be  done,  by  him  whose  interest  it 
was  to  have  it  done.  The  same  rule  is  applied  to  future  con- 
duct, and  men  continually  act  on  the  assumption  that  others 
will  consult  their  interest,  and  be  guided  by  it  in  whatever 
they  undertake  to  do.  In  investigating  this  matter  the 
advocate  must  carefully  avoid  an  error  which  frequently 
occurs  in  estimating  the  interest  of  a  person  in  the  cause. 
The  interest  which  any  individual  has  in  any  action,  and  by 
which  he  is  governed,  is  that  which  seems  to  him  to  be  his 
interest.  The  views  which  different  men  take  of  the  same 
action  or  conditions  are  widely  different.  One  is  eager  for 
riches  and  indifferent  to  pleasure.  One  hungers  after  knowl- 
edge ;  another  thirsts  for  power.  An  act,  which  procured  an 
empire  for  Diogenes,  would  have  served  his  interest  as  little 
as  an  act  which  procured  a  tub  would  have  served  the  inter- 
76 


OF  THE   SOURCES    OF   IDEAS.  §    IOO 

ests  of  Alexander.  In  estimating  interests,  therefore,  it  is  first 
necessary  to  determine  from  the  personal  history,  the  circum- 
stances, and  the  relations  of  an  individual  what  in  his  view 
his  true  interests  are,  and  not  till  this  is  ascertained  attempt 
to  judge  how  far  the  acts  in  question  would  have  hindered 
or  promoted  them.  A  neglect  of  the  former  of  these  lines 
of  inquiry  has  led  to  serious  but  needless  mistakes  in  many 
important  causes. 

§  99.  Ideas  Concerning  the  Persons  in  the  Cause:  then- 
Connection  -with  the  Cause. 
The  inquiry  as  to  the  connection  of  an  individual  with  the 
cause  is  the  most  fertile,  because  the  most  particular,  of  all 
these  personal  investigations.  It  involves  the  consideration 
of  all  the  details  of  the  act  on  which  the  cause  is  founded. 
It  embraces  an  examination  of  his  ability  and  opportunity  to 
perform  the  act,  of  his  preparations  for  its  commission  or 
concealment,  of  the  instruments  which  he  employed,  of  the 
various  stages  of  the  act  itself,  of  its  immediate  and  remote 
results  to  him,  of  his  conduct  subsequently  to  the  act,  and  of 
the  legal  and  moral  effect  upon  him  of  the  act  when  so 
performed.  Here  nothing  is  unimportant.  Masses  of  fact 
are  valueless,  detail  is  everything ;  and  the  most  zealous  and 
exhaustive  elaboration  of  each  particular  cannot  throw  too 
much  light  on  the  connection  of  the  alleged  actor  with  the 
act.  This  is  strictly  the  field  of  the  res  gestce,  the  facts 
involved  in  the  issue.  All  other  facts  are  worthless  except 
as  they  may  aid  in  ascertaining  this,  and  are  investigated 
only  that  the  information  thus  obtained  may  render  the 
truth  or  falsehood  of  the  claims  concerning  this  one  more 
apparent. 

§  100.    Ideas  Concerning  the  Persons  in  the  Cause  always 
Numerous  and  Important. 
It  is  evident  that  the  ideas  which  may  be  collected  by  a 
diligent  inquiry  as  to  these  five  classes  of  facts  relating  to  the 

77 


§   100  FORENSIC    ORATORY. 

persons  in  the  cause  must  be  very  numerous,  and  furnish  a 
large  amount  of  the  material  of  which  a  forensic  oration  is 
composed.  It  is  among  these  ideas  that  whatever  may  ap- 
peal to  the  sympathy,  the  indignation,  or  the  favor  of  the 
hearers  will  be  found,  and  from  them  the  most  striking  if  not 
the  most  conclusive  arguments  may  be  constructed,  and  the 
most  interesting  and  exciting  narratives  be  drawn.  However 
great  the  thoroughness  with  which  the  advocate  pursues 
this  investigation,  it  will  rarely  fail  to  meet  with  an  adequate 
reward. 

§  101.    Ideas  Concerning  the  Things  in  the  Cause. 

The  things  in  a  cause  are  all  those  objects  which,  in  any 
other  manner  than  as  intelligent  and  voluntary  actors,  are 
connected  with  the  cause.  Among  them  are  inanimate  ob- 
jects, the  brute  creation,  human  beings  considered  as  the 
end  and  not  the  source  of  activity,  and  acts  or  defaults  when 
distinguished  from  the  persons  by  whom  they  are  committed. 
In  every  cause  there  are  necessarily  more  or  less  of  these. 
Every  civil  suit  involves  some  action  or  omission,  and  is 
intended  to  redress  a  wrong  directed  against  either  prop- 
erty or  individuals.  Every  criminal  prosecution  is  instituted 
for  the  punishment  of  acts  from  which  some  object  has 
sustained  an  injury,  and  usually  embraces  matters  that  relate 
to  other  objects  also,  either  as  the  instruments  or  fruits  of 
crime.  The  collection  of  ideas  concerning  them,  therefore, 
becomes  the  constant  duty  of  the  advocate,  and  affords 
him  valuable  and  inexhaustible  material  for  argument  and 
illustration. 

§  102.    Ideas  Concerning  the  Things  in  the  Cause  are  of 

Ten  Classes. 

Ten  attributes  or  categories  have  been,  for  many  ages, 

regarded   as   predicable   of    every   intelligible    object,    and 

whether  philosophically  correct  or  not  still  serve  as  a  con- 

78 


OF  THE   SOURCES   OF   IDEAS.  §    IO3 

venient  classification  of  all  that  can  be  known  concerning  it : 
(1)  Existence;  (2)  Quality;  (3)  Quantity;  (4)  Relation; 
(5)  Place;  (6)  Time ;  (7)  Action;  (8)  Passion;  (9)  Pos- 
ture;  (10)  Habiliment.  These  indicate  the  different  lines 
of  inquiry  which  it  is  the  duty  of  the  advocate  to  pursue. 

§  103.  Ideas  Concerning  the  Things  in  a  Cause  :  Existence. 
The  inquiry  as  to  the  existence  or  non-existence  of  a 
thing  is  of  course  a  fundamental  one.  If  the  thing  be  the 
action  or  omission  from  which  the  cause  originated,  or  be 
the  person  or  the  property  for  whose  injury  redress  is  sought, 
an  answer  in  the  negative  is  the  determination  of  the  con- 
troversy. Even  although  the  thing  investigated  is  subordi- 
nate to  the  main  object  in  dispute,  the  fact  of  its  existence 
may  nevertheless  constitute  the  real  issue,  and  if  success- 
fully established  or  denied  may  control  the  ultimate  decision 
of  the  cause.  It  is  in  reference  to  this  attribute  of  objects 
that  questions  concerning  variance  between  proof  and  alle- 
gation generally  occur.  The  thing  which  is  material  to  the 
cause  is  the  thing  as  described  in  the  pleadings,  not  as  it  is 
in  itself.  In  every  case  of  misdescription,  therefore,  the 
thing  described  does  not  exist,  however  real  may  be  the 
object  which  the  pleader  intended  to  delineate.  Variance 
between  the  statement  of  a  contract  and  the  actual  agree- 
ment is  equivalent  to  the  non-existence  of  the  contract  as 
alleged  ;  and  the  same  is  true  of  every  allegation  as  to  acts 
or  objects  which  the  pleader  has  erroneously  made.  The 
inquiry  concerning  the  existence  of  anything  which  is  de- 
scribed is  thus  a  comparison  between  the  description  and 
the  fact,  and  if  substantial  variance  is  found,  the  thing  itself, 
so  far  as  this  cause  is  concerned,  does  not  exist.  Subordi- 
nate acts  or  objects  not  being  described,  or  whose  description 
is  superfluous  or  immaterial,  must  be  investigated  as  they 
really  are,  —  the  simple  fact  of  their  existence  or  non-exist- 
ence alone  being  important. 

79 


§  104  FORENSIC    ORATORY. 

§  104.  Ideas  Concerning  the  Things  in  the  Cause  :  Quality. 
The  attribute  of  quality  embraces  all  those  characteristics 
of  an  object  which  distinguish  it  from  other  objects  of  the 
same  species  ;  such  as  the  color,  habits,  temper,  speed,  and 
health  of  animals,  the  shape,  sharpness,  and  deadly  charac- 
ter of  weapons,  the  contents  of  written  instruments,  the  prop- 
erties of  drugs,  the  model,  rig,  and  seaworthiness  of  vessels, 
the  features,  gait,  and  other  physical  peculiarities  of  individ- 
uals, or  the  severity  and  quickness  of  a  blow.  All  estimates 
of  value  or  of  damage  done,  all  inquiries  as  to  the  possibility 
of  producing  a  result  by  certain  means,  all  inferences  con- 
cerning the  intention  of  the  actor  from  the  instruments  em- 
ployed in  the  performance  of  his  act,  all  questions  as  to  the 
identity  of  persons,  animals,  or  property,  and  other  contro- 
versies of  the  same  general  character,  are  settled  by  deter- 
mining the  qualities  of  things. 

§  105.  Ideas  Concerning  the  Things  in  the  Cause  :  Quantity. 
The  attribute  of  quantity  relates  to  number,  weight,  vol- 
ume, and  intensity.  The  first  three  of  these  are  predicable 
of  every  tangible  object ;  only  number,  of  actions  or  omis- 
sions ;  only  intensity,  of  light,  heat,  or  electricity.  As  a 
field  of  inquiry,  this  attribute  is  chiefly  valuable  when  the 
object  is  considered  in  relation  to  the  other  objects  or  the 
persons  in  the  cause,  and  then  becomes  a  fruitful  source  of 
arguments.  The  degree  of  light,  for  instance,  at  a  given 
time  and  place,  may  determine  whether  evidence  concerning 
acts  or  objects,  said  to  be  then  and  there  observed,  should 
be  regarded  as  reliable.  The  size  of  a  weapon  as  compared 
with  that  of  a  wound,  the  weight  of  a  parcel  as  compared 
with  the  strength  of  a  person  accused  of  having  carried  it 
away,  the  number  of  coins  as  indicating  the  value  of  the 
amount  tendered  or  received,  are  other  examples  of  the  in- 
fluence exerted  by  this  attribute  in  the  solution  of  questions 
arising  in  a  cause. 
8o 


OF  THE   SOURCES   OF  IDEAS.  §   IOJ 

§  106.  Ideas  Concerning  the  Things  in  the  Cause :  Relation. 

The  relation  of  one  thing  to  another,  either  as  its  cause  or 
its  effect,  or  as  modifying  its  action,  or  as  indicating  what  it 
was  or  is  to  be,  is  perhaps  the  most  important  and  suggestive 
of  these  attributes.  There  is  no  act  or  object  which  is  not 
related  in  some  degree  to  something  else,  and  which  cannot 
be  better  understood  by  examining  it  in  its  relation  with 
connected  objects.  The  more  intimate  and  necessary  the 
relation,  the  more  conclusive  is  the  inference  which  it  affords. 
The  suspicion  of  suicide,  which  arises  when  a  dead  man  is 
discovered  with  a  discharged  pistol  in  his  hand,  becomes  a 
strong  opinion  when  a  bullet  of  the  same  calibre  is  found 
within  his  brain,  and  ripens  into  full  conviction  if  the  wad- 
ding, taken  from  the  wound,  proves  to  be  a  portion  of  a  let- 
ter in  his  own  writing,  the  rest  of  which  is  found  upon  his 
person.  In  a  certain  manner,  the  study  of  this  attribute 
includes  that  of  all  the  others,  since  each  of  the  things  related 
must  be  thoroughly  examined  before  the  significance  of  their 
relation  can  be  fully  understood.  When  the  relation  is  itself 
a  controverted  fact,  the  character  and  number  of  its  attri- 
butes are  like  those  predicated  of  all  other  objects. 

§  107.    Ideas  Concerning  the  Things  in  the  Cause :  Place. 

The  attribute  of  place  refers  to  the  location  of  the  act  or 
object  during  its  connection  with  the  cause.  It  is  distin- 
guishable both  from  posture  and  relation.  Posture  is  predi- 
cate of  an  object,  in  whatever  place  the  object  may  be 
situated.  Place,  when  considered  as  an  element  of  relation, 
must  be  predicated  of  at  least  two  objects,  both  of  which  are 
known.  But  as  an  independent  attribute  it  can  be  affirmed 
of  any  single  object,  and  from  it  inferences  may  be  drawn 
concerning  other  objects  and  relations.  Thus  does  the  fact 
that  goods  are  stolen  from  some  secret  place  indicate  that 
the  thief  had  knowledge  of  the  spot  in  which  they  were  con- 
cealed.    The   discovery   of  instruments  of  homicide   in  a 

6  8i 


§   107  FORENSIC   ORATORY. 

locked  trunk  points  to  the  holder  of  the  key  as  having  guilty 
knowledge  of  the  crime.  The  existence  of  an  apparent  land- 
mark in  the  line  of  an  asserted  boundary  confirms  the  asser- 
tion of  the  claimant,  and  may  demonstrate  his  title  to  the 
land.  Like  all  the  following  attributes,  it  is  perhaps  but  one 
form  of  relation,  yet  if  so  it  is  sufficiently  important  to  be  con- 
sidered as  a  separate  matter  of  investigation.  As  the  most 
simple,  the  most  readily  examined,  and  affording  the  most 
plain  and  potent  arguments,  it  is  perhaps  of  all  relations  the 
most  valuable  to  the  advocate. 

§  108.    Ideas  Concerning  the  Things  in  the  Cause  :  Time. 

Time  embraces  the  ideas  of  date,  succession,  and  dura- 
tion. The  precise  moment  when  an  act  was  done,  the  order 
in  which  events  succeeded  one  another,  the  duration  of  oc- 
currences or  objects,  constantly  become  important  in  estimat- 
ing their  results  as  well  as  their  relations,  in  tracing  effects 
to  causes,  and  in  reproducing  the  true  characters  and  quali- 
ties of  things.  An  alibi  is  a  defence  grounded  on  the  two 
attributes  of  place  and  time,  as  predicated  of  the  accused. 
The  order,  in  which  a  mortgage  and  release  were  executed 
and  delivered,  determines  their  relation  to  each  other.  The 
duration  of  a  product  manifests  the  presence  or  the  absence 
of  the  qualities  which  the  manufacturer  contracted  that  it 
should  possess.  In  reference  to  this  attribute,  as  well  as  that 
of  quantity,  it  should  be  remembered  that  the  difficulty  of 
establishing  it  with  exact  precision  seriously  impairs  its  value 
in  forensic  oratory. 

§  109.  Ideas  Concerning  the  Things  in  the  Cause  :  Action. 
The  attribute  of  action  relates  to  spontaneous  but  non- 
intelligent  motion  and  causation,  and  to  the  results  thereby 
produced,  whether  upon  the  other  objects  in  the  cause  or 
on  the  minds  of  its  intelligent  and  voluntary  actors.  The 
conduct  of  the  irrational  animals,  the  movements  of  the  ele- 
82 


OF  THE   SOURCES   OF   IDEAS.  §   HO 

ments  and  their  effects  upon  animate  and  inanimate  objects, 
the  phenomena  of  attraction  and  repulsion,  the  operation  of 
machinery,  the  excitation  of  human  avarice  or  lust  or  anger 
by  the  presentation  of  the  objects  which  engender  such 
emotions,  are  instances  of  action.  One  form  of  this  attri- 
bute, causation,  closely  resembles  one  form  of  relation,  cause 
and  effect.  It  differs  from  it  however  in  this,  that  in  causa- 
tion not  the  fact  that  the  effect  follows  from  the  cause  is 
subject  to  investigation,  but  the  mode  only  by  which  the 
admitted  result  is  accomplished.  When  the  thing  in  the 
cause  is  itself  an  act,  this  attribute  relates  not  to  its  existence, 
its  qualities,  or  its  consequences,  but  solely  to  its  modus 
operandi,  —  the  manner  in  which,  being  what  it  was,  it  pro- 
duced the  effects  in  which  it  has  resulted.  Thus,  when  the 
action  was  a  blow  and  the  effect  was  death,  the  act,  its  vio- 
lence, and  its  result  may  be  admitted;  the  question  still 
remains  as  to  the  mode  in  which  it  operated  to  destroy  the 
victim,  and  on  this  question  life  and  death  may  hang. 

§  110.  Ideas  Concerning  the  Things  in  the  Cause  :  Passion. 
Passion  is  an  attribute  relating  to  subjection  and  to  recep- 
tivity. It  embraces  all  the  changes,  limitations,  and  exten- 
sions wrought  in  an  object  or  an  action  by  the  acts  of 
persons,  or  by  the  influence  of  things.  The  damaged  herbage 
in  an  entered  field,  the  wounds  on  a  dead  body,  the  blood- 
stains on  a  garment,  the  signature  and  attestation  on  a  deed, 
the  detection  or  prevention  of  a  crime,  are  common  illustra- 
tions of  the  facts  and  conditions  which  this  attribute  includes. 
Wherever  the  relation  of  cause  and  effect  exists  between  two 
objects,  the  action  predicated  of  the  one  produces  the  passion 
predicated  of  the  other.  One  of  the  most  conclusive  infer- 
ences is  that  which  from  two  of  these  elements  derives  the 
third.  The  passion  of  the  object  acted  on  and  its  relation 
to  the  acting  subject  being  known,  the  action  of  the  latter 
is  immediately  understood ;  or,  given  the  relation  and  the 

83 


§   110  FORENSIC   ORATORY. 

cause,  and  the  effect  upon  the  object  is  at  once  discernible. 
The  most  successful  and  important  investigations,  both  of 
the  detective  and  of  the  advocate,  relate  to  facts  in  which 
these  three  attributes,  action,  passion,  and  relation,  are  in 
this  way  involved. 

§  111.  Ideas  Concerning  the  Things  in  the  Cause :  Posture. 
Posture  is  the  position  of  an  object  considered  in  itself, 
and  without  reference  to  surrounding  objects.  Thus,  a  per- 
son or  an  animal  may  sit,  or  lie,  or  stand  erect ;  a  knife  may 
be  closed  or  open,  a  coat  be  folded  or  loosely  cast  upon  the 
ground.  Whatever  be  the  posture  of  an  object,  it  is  either 
the  effect  of  a  cause  extrinsic  to  itself,  or  results  from  the 
volition  of  the  object.  In  the  first  case,  like  any  other 
effect,  it  indicates  the  character  and  action  of  the  producing 
cause ;  in  the  last,  the  intention  or  expectation  of  the  person 
who  assumes  it.  The  posture  of  the  object  also  seriously 
affects  the  operation  of  the  cause,  and  renders  it  essential  to 
the  understanding  of  the  latter  that  the  former  should  be 
fully  understood.  In  every  case  of  injury  to  person  or  to 
property  this  attribute  of  the  thing  injured  demands  atten- 
tion, and  often  serves  to  indicate  the  nature  and  the  source 
of  the  injurious  act. 

§  112.   Ideas  Concerning  the  Things  in  the  Cause :  Habili- 
ment. 

The  attribute  of  habiliment  relates  to  covering,  vesture,  or 
possession.  This  attribute  so  far  partakes  of  the  nature  of 
the  individual  or  object  of  which  it  is  predicated,  that  what 
is  true  of  one  is  almost  certain  to  be  true  also  of  the  other. 
The  envelope  of  a  letter,  the  scabbard  of  a  sword,  the  cloth- 
ing of  a  person,  are  identified  with  that  which  they  enclose 
in  time,  place,  action,  passion,  and  position.  The  indications 
they  afford  concerning  the  attributes  of  the  object  to  which 
they  belong  are,  therefore,  invaluable.  The  shoes  of  a  sus- 
pected burglar,  foul  with  the  clay  that  surrounds  the  entered 
84 


OF  THE   SOURCES   OF   IDEAS.  §113 

dwelling,  betray  his  presence  at  the  scene  of  crime.  The 
garments  of  the  dead,  rent  and  torn  by  weapons,  reveal  the 
means  by  which  life  was  destroyed.  The  wrappings  of  a 
lost  package,  found  in  the  possession  of  a  carrier,  point  to 
the  means  by  which  it  disappeared.  In  questions  as  to  the 
identity  of  persons,  this  attribute  is  also  of  the  highest  moment ; 
conclusions  being  drawn  almost  entirely  from  the  observation 
of  the  person  when  fully  clothed,  and  the  similarity  or  dissim- 
ilarity of  vesture  contributing  to  the  conviction  or  denial  of 
identity. 

§  113.  Ideas  Concerning  the  Persons   and  Things   in  the 
Cause  are  of  Infinite  Variety  and  Great  Importance. 

In  reference  to  all  these  different  attributes  there  is  room 
for  almost  infinite  investigation.  They  meet  and  interlace 
with  one  another  in  every  direction.  The  discovery  of  one 
leads  by  inference  to  the  establishment  of  another,  and  this 
one  to  a  third,  each  step  confirming  and  extending  the  dis- 
coveries already  made,  until  from  the  most  trivial  beginnings 
the  great  conclusive  facts  stand  out  in  full  development.  In 
the  perception  and  pursuit  of  these  details  lies  the  supreme 
excellence  of  the  detective's  art,  who,  consciously  or  uncon- 
sciously reducing  his  investigations  to  a  system  based  on 
these  attributes  of  things,  feels  his  way  gradually,  with  uner- 
ring skill,  from  the  faint  shadows  of  suspicion  to  the  full  light 
of  indisputable  proof.  This  art  the  advocate  should  also 
strive  to  master.  The  ability  to  ascertain  what  may  be  known, 
and  to  combine  and  correlate  the  facts  thus  ascertained  in 
such  a  manner  as  to  indicate  still  further  facts,  is  so  essential 
that  no  wise  lawyer  will  neglect  its  cultivation.  From  want  of 
it,  or  of  its  exercise,  come  most  of  the  disappointments  which 
the  advocate  experiences  in  his  professional  career.  When 
in  the  full  tide  of  assured  success  the  astute  adversary  sug- 
gests some  little  fact  by  which  the  current  of  the  proof  is 
turned  against  him,  or  when  after  the  cause  is  lost  he  wonders 

85 


§   113  FORENSIC   ORATORY. 

at  the  dulness  or  the  negligence  which  overlooked  the  point 
on  which  his  client's  hopes  and  fortunes  have  been  wrecked, 
he  realizes  that  no  effort  is  too  great  and  no  search  too 
exhaustive  if  it  be  necessary  to  discover  all  the  facts  relating 
to  his  cause.  And  with  the  line  of  inquiry  so  clearly  indi- 
cated, nothing  but  the  entire  absence  of  the  means  of  knowl- 
edge can  excuse  him,  if  his  investigation  leave  behind  it  any 
source  for  such  surprises  when  the  conflict  actually  comes. 

§  114.  Ideas  Concerning  the  Law  of  the  Cause  :  Classes  of : 
Rules  of  Evidence. 
The  law  of  a  cause  embraces:  (i)  Those  rules  of  law  which 
govern  the  admissibility  and  production  of  evidence  con- 
cerning facts ;  (2)  Those  rules  which  govern  the  construction 
of  such  facts,  and  their  application  to  the  points  in  issue ; 
(3)  Those  rules  which  govern  the  decision  of  the  cause  itself. 
Those  rules  which  govern  the  production  and  admissibility 
of  evidence  are  involved  in  every  cause  in  which  an  issue  of 
fact  is  presented.  Whatever  of  importance  the  advocate 
may  discover,  in  his  investigations  as  to  things  and  persons, 
is  available  to  him  only  when  it  can  be  legally  established. 
It  is  a  necessary  though  sometimes  an  inconvenient  maxim 
of  the  law,  that  in  a  court  of  justice  only  that  is  true  which 
can  be  proved ;  and  to  the  test  afforded  by  this  rule  every 
fact  existing  in  the  cause  must  at  some  stage  of  the  proceed- 
ings be  subjected.  Immediately  upon  his  answering  to  him- 
self the  question,  What  are  the  facts  ?  arises  therefore  to  him 
this  one  equally  momentous,  Can  they  be  proved  ? 

§  115.    Ideas  Concerning  the   Law  of  the    Cause :   Rules 

Governing  the  Admissibility  of  Evidence. 

The  evidence  by  which  facts  that  are  provable  can  be 

established   is  frequently  of  different  kinds,  between  which 

the  law  rigidly  distinguishes,  requiring  that  which  it  regards 

as  the  best  evidence  to  be  alone  adduced.     The  contents  of 

86 


OF  THE   SOURCES   OF  IDEAS.  §   1 17 

a  written  instrument,  for  instance,  may  be  proved  by  the 
production  of  the  instrument  itself,  by  a  sworn  copy,  or  by 
the  oral  testimony  of  witnesses  who  have  examined  and 
remember  it.  Each  of  these  kinds  of  proof  seems  satisfactory 
in  itself  to  ordinary  men,  but  the  law  will  permit  only  the 
first  where  the  instrument  itself  can  be  obtained,  and  the 
last  only  when  the  first  and  second  are  shown  to  be  impos- 
sible. Hence,  when  the  provability  of  any  fact  becomes 
apparent  to  the  advocate,  he  has  still  further  to  determine 
by  what  evidence  at  his  command  the  rules  of  law  compel 
him  to  support  it. 

§  116.  Ideas  Concerning  the  Law  of  the  Cause :  Rules 
Governing  the  Production  of  Evidence. 
The  method  and  the  order  in  which  admissible  evidence 
must  be  introduced  are  also  regulated  by  the  law.  With  the 
rules  governing  these  matters  every  advocate  must  be  pre- 
sumed to  be  familiar.  Yet  no  degree  of  confidence  in  his 
familiarity  with  them  ought  ever  to  prevent  him  from  deter- 
mining, at  this  stage  of  his  labors,  the  mode  in  which  he  will 
present  his  proof,  and  answer  the  objections  that  may  be 
suggested.  Postponement  of  this  inquiry  until  the  cause  is 
actually  on  trial  often  results  in  sad  surprises,  which  might 
easily  have  been  avoided.  If  he  remembers  that  his  fact 
cannot  be  treated  as  an  element  in  the  cause  until  it  is 
legally  before  the  jury,  it  will  be  clear  to  him  that  his  exam- 
ination of  the  fact  is  not  complete  unless  he  ascertains  not 
only  that  it  exists,  and  that  it  can  be  proved,  but  the  exact 
method  by  which,  in  spite  of  all  objections  and  all  contin- 
gencies, he  will  ultimately  establish  it. 

§  117.    Ideas    Concerning   the   Law  of  the   Cause :    Rules 
Governing  Presumptions  of  Law  and  Fact. 
The  rules  which  govern  the  construction  of  the  facts,  and 
their  application  to  the  points  in  issue,  also  concern  every 

87 


§    117  FORENSIC    ORATORY. 

cause  in  which  an  issue  as  to  fact  is  raised.  While  every 
fact  is  in  itself  just  what  the  evidence  discloses  it  to  be,  many 
facts  have  in  law  a  peculiar  character  not  contradictory  to, 
but  in  excess  of,  that  which  they  naturally  possess.  The 
doctrine  of  presumptions,  which  enters  so  largely  into  the 
law  of  evidence,  thus  gives  to  certain  facts  a  most  important 
technical  construction,  which  constitutes  the  real  nature  of 
the  fact  itself  as  contemplated  by  the  courts.  The  retention 
by  the  vendor  of  the  possession  of  goods  sold  is  a  striking 
example  of  the  effect  of  these  presumptions.  In  certain 
jurisdictions  this  fact  is  regarded  as  conclusive  evidence  of 
a  secret  trust  in  favor  of  the  vendor,  and  as  against  his 
creditors  renders  the  sale  ipso  facto  void.  In  other  jurisdic- 
tions the  same  fact  is  considered  prima  facie  evidence  of 
secret  trust,  but  may  be  rebutted  or  explained  by  other  testi- 
mony. The  proof  of  such  retention,  therefore,  does  not 
merely  show  the  physical  location  of  the  goods  described ; 
it  demonstrates  that  the  vendor  and  the  vendee  have  secretly 
conspired  against  the  creditors  of  the  vendor  to  perpetrate  a 
fraud,  or  at  least  puts  them  upon  proof  that  such  conspiracy 
does  not  exist.  The  doctrine  that  a  written  instrument  is 
subject  to  construction  by  the  court,  and  that  its  meaning  is 
not  simply  what  its  language  might  imply  but  what  the  law 
considers  it  to  mean,  is  still  another  instance  of  this  rule  that 
every  fact,  for  all  forensic  purposes,  is  the  fact  as  it  exists  in 
the  contemplation  of  the  law. 

§  118.    Ideas   Concerning  the  Law  of  the  Cause :    Rules 
Governing  the  Application  of  the  Facts  Proved 
to  the  Points  in  Issue. 
The  application  of  the  facts  proved  to  the  points  in  issue 
is  matter  for  still  further  inquiry.     The  law  does  not  permit 
a  jury  to  decide  an  issue,  even  according  to  their  own  con- 
victions, unless  the  evidence  is  legally  sufficient  to  warrant 
their  decision.     Hence,  the  advocate  must  not  only  have  at 
88 


OF   THE   SOURCES    OF   IDEAS.  §   119 

his  command  such  evidence  as  is  required  to  prove  the  facts 
he  wishes  to  present,  but  he  must  present  facts  which,  if 
established,  will  justify  the  judgment  that  he  seeks.  Where 
direct  testimony  to  the  sole  fact  in  issue  in  the  cause  is  to  be 
offered,  this  question  is  identical  with  that  of  the  provability 
of  the  fact  desired.  But  when  the  fact  in  issue  is  to  be 
deduced  from  other  facts,  the  same  point  is  always  indirectly 
raised,  and  is  another  form  of  the  inquiry  whether  from  the 
established  facts  the  fact  in  issue  can  properly  be  inferred. 
This  is  a  question  which  the  law  never  allows  a  jury  to  decide 
contrary  to  the  settled  principles  of  human  reasoning.  The 
interference  of  the  court  does  not,  in  such  cases,  indicate  a 
simple  difference  of  opinion  between  it  and  the  jury  as  to 
the  existence  of  a  state  of  facts  ;  it  is  the  inevitable  and 
necessary  supervision  which  the  law  exercises  over  the  un- 
skilled ratiocinations  of  the  men  who  are  its  instruments, 
and  constitutes  the  safeguard  and  the  check  which  alone 
render  jury  trials  possible.  Its  true  nature  is  shown  by  the 
distinction  that,  if  the  fact  decided  was  evidenced  by  direct 
testimony  only,  the  court  will  never  interfere  except  in  cases 
of  such  manifest  error  as  to  raise  a  suspicion  of  corruption ; 
while  if  the  fact  decided  was  a  fact  to  be  deduced  from  other 
facts,  any  important  error  in  the  inference  involves  the  effect- 
ive interposition  of  the  bench.  In  estimating  the  value  of 
his  facts  the  advocate  must,  therefore,  have  a  constant  refer- 
ence to  the  rules  by  which  their  sufficiency  for  his  purpose 
is  determined,  and  if  they  appear  clearly  insufficient  they 
should  be  unhesitatingly  rejected. 

§  119.  Ideas  Concerning  the  Law  of  the  Cause :  Rules 
Governing  the  Decision  of  the  Cause  itself. 
The  rules  of  law  which  govern  the  decision  of  the  cause 
itself  complete  the  field  of  inquiry  presented  to  the  advocate. 
When  the  entire  cause  is  reduced  to  a  single  issue,  these 
rules  are  the  same  as  those  in  reference  to  the  legal  suffi- 

89 


§   119  FORENSIC    ORATORY. 

ciency  of  the  facts  to  support  a  verdict ;  for  in  such  causes, 
if  the  facts  are  legally  sufficient,  a  verdict  in  accordance  with 
such  facts  must  follow.  But  where,  as  in  most  cases,  subor- 
dinate issues  are  created,  and  on  sufficient  facts  have  been 
determined,  the  question  still  remains  whether,  upon  the 
whole  cause,  the  plaintiff  or  defendant  shall  have  judgment. 
The  rules  by  which  this  question  is  to  be  decided  are, 
therefore,  to  be  fully  ascertained  before  the  advocate  can 
adequately  measure  the  merits  of  his  cause,  or  rest  assured 
that  he  has  mastered  the  ideas  which  it  presents  for  his 
consideration.  The  point  at  which  the  investigation  of  the 
advocate  is  thus  completed  is  the  same  point  at  which  it  was 
begun.  In  his  determination  of  the  issue  the  first  step  was 
to  ascertain  these  rules,  and  by  their  aid  discover  what  must 
be  affirmed  in  order  to  sustain  the  cause,  and  what  denials 
are  sufficient  to  defeat  it.  Thence  he  proceeds  to  the  special 
points  of  which  the  affirmation  was  composed,  and  to  the 
facts  by  which  these  points  might  be  maintained.  Now  he 
applies  to  all  his  labor  this  supreme  and  final  test,  and  by  the 
result  judges  of  the  future  of  his  cause. 


90 


COLLECTION   OF   IDEAS:    MATTERS   OF  FACT.    §   121 


CHAPTER  III. 

OF  THE  COLLECTION  OF  IDEAS  CONCERNING  MATTERS  OF  FACT. 

§  120.  Collection  of  Ideas  concerning  Matters  Outside 
the  Cause. 
Ideas  concerning  facts  universally  known  are  constantly, 
and  without  conscious  effort  upon  his  part,  entering  into  and 
extending  the  mental  resources  of  the  advocate.  His  gen- 
eral reading,  his  professional  experience,  his  social  inter- 
course, his  daily  contact  with  the  world,  furnish  him  with 
this  material,  which  may  be  indefinitely  increased  in  measure 
and  importance  if  he  persistently  familiarizes  himself  with 
human  actions  and  affairs. 

§  121.  Collection  of  Ideas  concerning  Matters  Within  the 
Cause:  Difficulties  Encountered. 
Ideas  concerning  the  facts  peculiar  to  the  cause,  however, 
are  usually  to  be  obtained  only  by  positive  and  earnest  in- 
quiry. The  facts  themselves,  except  in  very  rare  instances, 
are  originally  unknown  to  him.  The  lapse  of  time  since 
their  occurrence  often  destroys  all  physical  traces  of  events, 
and  so  far  changes  the  character  of  objects  that  their  exami- 
nation gives  him  no  certain  knowledge.  The  failure  of 
witnesses  to  observe  and  recollect  particulars,  the  loss  of 
evidence  through  carelessness  or  accident,  and  many  other 
even  greater  difficulties,  must  be  surmounted,  or  the  evils 
they  entail  must  be  endured.  But  the  result  which  follows 
careful,  persevering  inquiry,  in  spite  of  all  these  obstacles, 
often  surpasses  the  most  sanguine  expectations  of  the 
advocate. 

91 


§   122  FORENSIC   ORATORY. 

§  122.    Ideas  concerning  Matters  within   the  Cause  Col- 
lected by  Direct  Investigation  or  by  Inference  : 
Field  of  Direct  Investigation. 
Ideas  concerning  facts  may  be  collected  either  by  direct 
investigation  of  the  facts  themselves,  or  by  inferring  them 
from  other  facts  already  known.     Both  of  these  methods  are 
open  to  the  advocate,  and  are  of  service  to  him  in  almost 
every  cause.     The  direct  investigation  of  the  facts  them- 
selves   is   pursued   by  the   examination    (i)  of  his  client; 
(2)  of  other  witnesses ;    (3)  of  objects  and  places ;  (4)  of 
'the  results  of  experiment ;   (5)  of  private  writings ;  (6)  of 
public  records. 


§  123.  Direct  Investigation :  Examination  of  the  Client : 
its  Difficulties. 
The  first  information  which  the  advocate  obtains  is  gener- 
ally derived  from  the  statements  of  his  client,  and  in  securing 
information  from  this  source  he  should  be  especially  upon 
his  guard.  Things  are  to  a  man  what  he  conceives  them  to 
be,  and  with  his  personal  interest  in  the  cause,  and  perhaps 
his  passions  also,  coloring  all  his  views  and  estimates  of 
things,  it  is  natural  that  every  favorable  circumstance  should 
be  exaggerated,  and  every  hostile  one  extenuated  or  con- 
cealed. A  client  almost  always  at  first  considers  his  counsel 
less  as  an  adviser  than  as  a  judge.  He  seeks  to  vindicate 
himself,  to  justify  his  actions  or  his  claims,  and  to  secure  an 
opinion  which  confirms  his  own.  Under  such  conditions  it 
is  no  easy  matter  to  elicit  from  him  the  exact  truth  and  the 
whole  truth,  even  in  regard  to  facts  which  he  actually  knows  ; 
while  all  the  difficulties  which  grow  out  of  carelessness  of 
observation  or  defect  of  memory  are  to  be  met  in  him  as 
well  as  in  less  interested  witnesses. 


92 


COLLECTION   OF  IDEAS:    MATTERS   OF   FACT.    §    1 25 

§  124.  Direct  Investigation  :  Examination  of  the  Client : 
his  General  Statement. 
The  advocate  should  see  his  client  personally  and  alone, 
and  without  questioning  or  interruption  permit  him  to  relate 
his  story  in  his  own  way,  no  matter  what  irrelevant  state- 
ments he  may  make,  or  how  far  back  in  the  order  of  events 
he  may  incline  to  go.  At  this  stage  of  the  investigation  the 
advocate  knows  simply  nothing  of  the  case,  and  should 
neither  direct  the  attention  of  his  client  to  specific  points, 
nor  confine  him  to  particular  details.  The  attempt  to  do 
this  generally  results  in  hopelessly  confusing  him,  or  in 
excluding  from  the  advocate  the  knowledge  of  material 
and  important  facts.  On  the  contrary,  he  should  with 
patience  watch  and  listen,  studying  both  the  client  and 
the  cause,  endeavoring  to  detect  the  interests  and  the 
passions  which  are  likely  to  pervert  his  judgment  or 
veracity,  as  well  as  to  discern  the  great  outlines  of  the 
controversy,  and  the  facts  by  which  his  side  of  it  may  be 
maintained. 


§  125.  Direct  Investigation  :  Examination  of  the  Client  : 
Questions  of  the  Advocate. 
This  operation  finished,  the  advocate  should  next  inquire 
concerning  everything  which  seems  to  him  connected  with 
the  cause,  whether  or  not  it  is  important  in  the  estimation  of 
his  client,  pursuing  his  investigations  as  to  things  and  per- 
sons in  the  manner  which  their  several  attributes  require. 
Having  exhausted  this  examination,  the  client  should  be 
directed  to  restate,  from  the  beginning,  all  the  details  of  his 
cause.  His  memory,  being  now  refreshed  by  the  questions 
of  the  advocate,  will  probably  recall  some  matters  heretofore 
omitted,  or  in  relating  the  same  facts  the  coloring  which  he 
first  gave  them  will  be  reduced  or  disappear,  and  the  real 
merits  of  his  case  be  thus  disclosed. 

93 


§   126  FORENSIC   ORATORY. 

§  126.  Direct  Investigation  :  Examination  of  the  Client : 
Cross  Questions  of  the  Advocate. 
The  narration  of  his  client  being  at  an  end,  the  advocate 
assumes  the  character  of  an  opponent,  and  considers  what 
contrary  assertions  he  is  likely  to  encounter,  and  to  what 
cross-examination  the  client,  if  a  witness,  will  be  subjected. 
These  contrary  assertions  should  be  then  propounded  to  the 
client,  and  his  answers  to  them  scrutinized  with  care.  As 
to  all  doubtful  or  unreliable  portions  of  his  story  he  should 
be  also  rigorously  and  fully  cross-examined.  This  mode  of 
treatment,  though  apparently  severe  and  involving  time  and 
patience,  is  eminently  useful.  No  tenderness  for  human  feel- 
ings could  excuse  the  surgeon  who  would  shrink  from  any 
necessary  examination  of  a  wounded  limb,  and  the  true 
interests  of  a  client  no  less  require  a  thorough  probing  of 
the  weaknesses  and  demerits  of  his  cause. 

§  127.    Direct  Investigation  :    Examination  of  the  Client : 
Result  Reduced  to  "Writing. 

The  ultimate  results  of  all  these  statements  should  be 
written  down,  and  read  over  to  the  client,  and  when  cor- 
rect be  signed  by  him,  and  be  kept  by  the  advocate  not 
only  as  a  guide  to  further  inquiries,  but  as  a  method  of 
refreshing  the  recollection  of  the  client,  if  in  regard  to  any 
matter  it  should  fail,  and  of  justifying  his  own  action  in 
pursuance  of  such  information,  if  at  any  future  time  it 
should  be  called  in  question. 

§  128.  Direct  Investigation :  Examination  of  Alleged 
"Witnesses. 
It  often  happens  that  the  facts  narrated  by  the  client  indi- 
cate that  further  facts,  unknown  to  or  merely  conjectured  by 
him,  are  within  the  knowledge  of  other  individuals  from  whom 
the  information  concerning  them  can  be  obtained.  These 
individuals,  whether  competent  as  witnesses  in  court  or  not, 

94 


COLLECTION   OF   IDEAS  :    MATTERS   OF  FACT.    §   1 30 

the  advocate  must  personally  examine,  following  substantially 
the  method  previously  adopted  with  his  client  and  constantly 
remembering  that,  although  without  interest  in  the  cause  itself, 
the  natural  desire  to  please  will  lead  them  to  color  favorably 
the  facts  which  they  narrate  and  possibly  to  make  assertions 
which  have  no  foundation.  These  statements  should  be  writ- 
ten down,  signed  by  the  persons  making  them,  and  carefully 
preserved  for  the  same  purposes  as  that  made  by  the  client, 
and  also  lest  on  account  of  some  change  in  their  feelings 
toward  the  client  their  testimony,  unless  thus  secured,  might 
be  withheld. 

§  129.  Direct  Investigation  :  Examination  of  Objects  and 
Places. 
Whenever  any  tangible  object  is  involved  in  any  issue, 
either  as  a  direct  subject  of  controversy,  or  as  the  instrument 
or  the  result  of  any  action,  this  object  should  be  critically 
examined  by  the  advocate  himself,  no  matter  how  complete 
and  accurate  the  description  of  it  by  his  client  or  his  wit- 
nesses may  appear  to  be.  The  same  course  should  be 
pursued  in  reference  to  places  where,  or  concerning  which, 
an  action  is  alleged  to  have  been  performed.  Ideas  con- 
veyed to  him  by  others  on  these  matters  are  never  so  exact 
and  perfect  as  those  obtained  from  ocular  observation,  and 
for  his  own  information,  as  well  as  to  enable  him  properly  to 
conduct  the  examination  of  his  witnesses  in  court,  he  should 
always  personally  inspect  them. 

§  130.  Direct  Investigation :  Examination  of  the  Results 
of  Experiment. 
In  many  cases,  where  the  cause  of  visible  or  provable 
effects  is  in  dispute,  experiments  with  the  supposed  cause 
may  be  necessary  to  determine  whether  by  its  means  the 
known  effect  could  be  produced.  Thus,  for  example,  a  bul- 
let passing  through  a  window-pane  penetrates  the  victim's 

95 


§   130  FORENSIC  ORATORY. 

skull  and  is  discovered  in  her  brain,  weighing  a  few  grains 
less  than  one  exactly  fitted  to  the  bore  of  the  defendant's 
gun.  Experiment  alone  can  tell  whether  the  loss  of  metal 
from  the  ball,  by  contact  with  the  glass  and  bone,  could 
be  so  slight  that  it  might  have  been  fired  from  the  weapon 
claimed.  Or,  again,  a  man  whose  name  appears  as  grantor 
in  a  deed  denies  the  signature.  Experiment  will  indicate 
whether  the  writing  so  resembles  his  as  to  make  its  genuine- 
ness probable.  All  such  experiments,  though  sometimes 
properly  performed  by  experts  only,  should  be,  if  possible, 
conducted  in  the  presence  of  the  advocate,  —  the  clearest  of 
descriptions  not  being  even  here  equivalent  to  sight. 


§  131.  Direct  Investigation :  Examination  of  Private 
"Writings. 
When  any  part  of  a  transaction  has  been  reduced  to  writ- 
ing, or  any  memorandum  or  description  of  an  event  or 
object  has  been  made,  the  advocate  should  obtain  and  care- 
fully examine  it.  This  is  a  field  of  inquiry  which  becomes 
daily  more  fruitful  of  results  as  the  practice  of  making  and 
preserving  written  memoranda  becomes  more  common 
among  men,  and  in  its  exploration  deserves  far  more  atten- 
tion than  it  usually  receives.  The  statement  of  a  client  or 
his  witnesses  concerning  the  importance  or  the  contents  of 
such  writings  should  never  be  implicitly  believed.  The  advo- 
cate should  insist  on  the  production  of  all  letters,  books,  and 
papers  in  which  an  entry  in  any  way  relating  to  the  cause 
could  possibly  be  made ;  and  when  produced,  they  should 
be  thoroughly  examined.  By  doing  this  he  often  will  pre- 
vent the  disagreeable  discovery,  after  his  case  is  lost,  that  in 
some  neglected  corner  of  his  client's  cupboard  lay  an  old 
book  or  letter,  containing  entries  or  admissions  that  might 
have  won  the  cause. 


96 


COLLECTION  OF  IDEAS:  MATTERS  OF  FACT.  §  133 

§  132.    Direct     Investigation :      Examination     of      Public 
Records. 
This  personal  investigation  of  the  advocate  should  extend 
also  to  whatever  public  records  may  throw  light  upon  the 
cause.     Perfect  confidence  cannot  be  placed  in  the  correct- 
ness of  any  copy,  by  whomsoever  made.     The  original  files 
and  dockets  of  the  courts,  the  records  of  the  probate,  land, 
and  tax  offices,  the  registers  of  births,  marriages,  and  deaths, 
—  themselves  too  often  not  conspicuously  legible,  —  are  far 
less  likely  to  mislead  the  advocate  to  whom  the  object  of  the 
search  is  fully  known,  than  the  mere  copyist  whose  eye  and 
hand  alone  are  occupied  in  their  transcription ;  and  there- 
fore, when  they  are  accessible  to  him,  should  be  submitted 
to  his  personal  inspection.    In  this  pursuit  not  much  depend- 
ence must  be  placed  upon  the  indexes  to  public  records. 
Omissions  and   mistakes   in  these  occur  too  frequently  to 
render  the  results  of  an  examination,  conducted  by  their  aid 
alone,  entirely  reliable.     There  are  few  lawyers  of  an  inde- 
fatigable temper  who  have  not  succeeded  in  some  investiga- 
tion of  this  kind,  after  another  of  inferior  pertinacity  has  tried 
in  vain.     The  advocate  who  takes  nothing  for  granted,  not 
even  the  accuracy  of  other  men's  sensations,  and  insists  on 
testing  all  things  for  himself,  will  find  his  time  and  patience 
most  severely  tried,  but  will  often  be  rewarded  by  success 
where  lesser  efforts  must  have  surely  failed. 

§  133.    Direct  Investigation  :  Not  Confined  to  One  Side  of 
the  Cause. 

In  making  these  direct  investigations  the  advocate  should 
not  confine  himself  to  persons  and  objects  from  which  he 
may  have  reason  to  expect  evidence  or  arguments  in  support 
of  his  future  claims.  It  is  of  almost  as  much  importance 
that  he  become  familiar  with  what  may  be  produced  or  urged 
against  him,  as  with  what  he  himself  will  use  in  his  own 
aggression  or  defence.     His  inquiries  should  thus  extend  to 

7  97 


§   133  FORENSIC    ORATORY. 

witnesses  supposed  to  be  adverse,  in  order  that  their  testi- 
mony may  be  foreknown,  or  at  least  that  he  may  be  assured 
of  their  hostility ;  and  where  it  can  be  done  without  decep- 
tion or  unfairness  he  may  approach  even  the  adverse  parties, 
to  ascertain  their  actual  position  and  the  modes  by  which 
they  have  determined  to  maintain  it.  Writings  and  objects 
also  which  are  prejudicial  to  his  case,  so  far  as  he  can  obtain 
access  to  them,  he  should  examine  with  as  much  solicitude 
to  understand  their  real  significance  as  if  he  were  to  act  as 
counsel  on  the  other  side.  The  discoveries  thus  made  will 
lead  to  further  investigations  through  his  own  witnesses  and 
client,  and  in  the  direction  of  new  witnessess  and  objects, 
until  his  knowledge  of  all  the  facts  relating  to  the  controversy 
becomes  complete. 

§  134.    Collection  of  Ideas  by  Inferences. 

The  method  of  collecting  ideas  which  consists  in  inferring 
one  fact  from  another  is  almost  as  serviceable  as  that  of 
direct  personal  examination.  This  method  is  an  act  of  rea- 
soning as  distinguished  from  sensation,  and  in  order  to  attain 
the  best  results  requires  some  practical  acquaintance  with  the 
rules  of  logic.  All  men,  however,  constantly  employ  this 
mode  of  ascertaining  facts,  and  as  to  all  common  and  famil- 
iar things  correctly  draw  conclusions  from  what  they  see  and 
hear.  In  forensic  oratory  this  process  of  deduction  serves 
two  different  purposes  :  it  aids  the  advocate  in  his  investiga- 
tion of  the  cause ;  it  also  furnishes  him  with  arguments  by 
which  his  claim  may  be  eventually  demonstrated.  In  serv- 
ing the  first  purpose,  he  may  employ  as  the  bases  of  his  in- 
ferences facts  which,  though  known,  are  not  provable,  and 
in  this  manner  find  his  way  to  other  facts  that,  when  dis- 
covered, can  be  legally  established.  But  in  serving  the  latter 
purpose,  only  such  grounds  of  inference  can  be  improved  as 
are  already  universally  admitted,  or  have  been  properly  pro- 
duced in  court. 
98 


COLLECTION  OF  IDEAS  :  MATTERS  OF  FACT.  §  1 36 

§  135.    Inferences  :    Four  Classes. 

There  are  four  simple  forms  to  which  all  inferences  may 
be  reduced  :  (1)  An  affirmative  from  an  affirmative,  —  this 
is,  therefore  that  is;  (2)  A  negative  from  a  negative, — this 
is  not,  therefore  that  is  not ;  (3)  A  negative  from  an  affirm- 
ative, —  this  is,  therefore  that  is  not ;  (4)  An  affirmative 
from  a  negative,  —  this  is  not,  therefore  that  is.  An  instance 
of  the  first  form  is  when  the  ownership  of  chattels  is  inferred 
from  their  possession  ;  of  the  second,  where  the  non-pay- 
ment of  a  note  is  inferred  from  its  non-surrender  to  the 
maker ;  of  the  third,  an  alibi ;  of  the  fourth,  where,  from  the 
established  innocence  of  one  of  the  only  two  persons  to 
whom  guilt  can  be  imputed,  the  guilt  of  the  other  is  inferred. 
All  of  these  forms  except  the  fourth  are  constantly  in  use  in 
nearly  every  cause  investigated,  by  far  the  greater  portion 
of  the  facts  being  discovered  by  their  aid. 

§  136.    Inferences  :    Necessary,  Probable,  or  Possible. 

Some  inferences  are  necessary,  others  probable,  and  others 
merely  possible.  A  necessary  inference  is  one  in  which,  if 
the  first  fact  be  established,  the  other  must  inevitably  be 
true.  A  man  is  found  stabbed  to  the  heart,  with  the  fresh 
print  of  a  bloody  right  hand  on  his  right  forearm  :  the  infer- 
ence is  necessary  that  some  person  other  than  himself  was 
lately  present,  and  with  a  bloody  hand.  A  probable  infer- 
ence is  one  in  which,  if  the  first  fact  is  true,  the  second  fact 
is  probable.  Under  a  window  which  has  been  burglariously 
opened  is  seen  a  footprint  with  a  peculiar  mark  across  the 
toe.  The  boot  of  the  accused  corresponds  exactly  both  with 
the  print  and  the  peculiar  mark.  The  inference  of  guilt  is 
probable  but  not  inevitable,  for  other  boots  may  bear  the 
same  peculiar  mark,  or  some  other  person  may  have  been 
wearing  this  boot,  or  the  accused  may  have  been  on  that 
very  spot  and  still  have  no  connection  with  the  crime.  A 
possible  inference  is  one  in  which,  although    the  first  fact 

99 


§   136  FORENSIC   ORATORY. 

be  admitted,  the  second  is  as  likely  to  be  false  as  true.  A 
roll  of  bills  of  small  denominations  and  amount  is  stolen 
from  a  person  in  a  crowded  hall.  A  roll  of  bills  of  similar 
denominations  and  amount  is  found  upon  another  who  stood 
near  him  in  the  throng.  The  inference  of  guilt  is  possible, 
for  the  bills  may  be  the  same  bills,  and  the  possessor  may 
be  the  thief;  but  it  is  not  even  probable,  for  any  other  per- 
son in  the  crowd  had  the  same  opportunity  to  steal,  and  bills 
of  this  description  are  too  common  to  warrant  a  reasonable 
belief  in  their  identity,  where  no  actual  evidence  of  such 
identity  is  offered. 

§  137.  Inferences :  Probable  Inferences  Sufficient  for  Ju- 
dicial Direction. 
In  mathematics  and  the  other  abstract  sciences  necessary 
inferences  are  not  infrequent,  one  proposition  following  from 
another  with  unerring  certainty.  But  in  the  ordinary  affairs 
of  life  facts  which  afford  a  necessary  inference  are  very  rare, 
and  all  men  are  compelled  to  act  in  matters  of  the  highest 
import  upon  a  judgment  based  on  probabilities.  Especially 
is  this  true  of  judicial  action.  No  fact  is  ever  so  conclusively 
established  that  a  court  is  safe  from  every  possibility  of  error. 
The  credibility  of  testimony  rests  on  the  probability,  not  on 
the  certainty,  that  witnesses  will  tell  the  truth ;  and  in  its 
last  resort,  the  judgment  of  a  court,  even  when  the  sole  fact 
in  issue  is  directly  proved,  reposes  on  this  inference  of  cred- 
ibility. The  rule  in  criminal  causes,  that  the  guilt  of  the 
accused  must  be  established  beyond  reasonable  doubt,  means 
nothing  more  than  that  the  probability  of  guilt  must  exclude 
every  probability  of  innocence.  The  rule  in  civil  causes,  that 
only  when  supported  by  preponderance  of  evidence  can  the 
claims  of  the  affirmative  prevail,  signifies  merely  that  the  greater 
probability  must  be  in  his  favor.  Judicial  action  is  thus  the 
estimation  of  probabilities  ;  and  however  hopeless  might  at 
first  appear  the  prospect  of  arriving  at  correct  results  by  such 
IOO 


COLLECTION   OF   IDEAS  '.    MATTERS   OF    FACT.    §   1 39 

a  process,  the  general  justice  and  wisdom  of  judicial  decisions 
proves  that  the  process  is  sufficiently  reliable. 

§138.    Inferences:    Value  of  Possible  Inferences. 

Possible  inferences  are  of  no  original  affirmative  value. 
They  serve,  however,  to  confirm  a  fact  which  other  infer- 
ences render  probable,  and  the  greater  their  number,  the 
stronger  will  be  their  confirmatory  power.  They  also  serve 
to  limit  the  probability  of  other  inferences,  by  showing  that 
antagonistic  theories  are  not  without  support,  and  thus  some- 
times become  of  immense  negative  importance  in  matters  of 
defence  and  refutation.  In  this  aspect  they  should  always 
be  carefully  sought  out  and  duly  estimated,  lest  by  their  skil- 
ful use  some  essential  proposition  of  the  advocate  should  be 
so  weakened  as  to  fail  him  in  his  hour  of  need. 

§139.    Inferences:    Elements  of:    Value  how  Estimated: 
Measure  of  Probability. 

Every  inference  involves  three  elements  :  the  fact  from 
which  the  inference  is  drawn ;  the  fact  inferred ;  and  that 
relation  or  connection  between  these  facts  which  renders  the 
existence  of  the  one  in  some  degree  dependent  on  the  exist- 
ence of  the  other.  The  value  of  the  inference  is  measured 
by  the  permanence  and  uniformity  of  this  relation.  When 
it  is  constant  and  universal,  the  inference  is  necessary  and 
conclusive ;  when  it  is  generally  present,  with  few  and  rare 
exceptions,  the  inference  is  highly  probable ;  and  in  propor- 
tion as  exceptions  commonly  invade  the  rule  does  probability 
decrease,  until  the  rule  and  the  exceptions  balance  each 
other,  and  the  inference  becomes  simply  possible.  The 
power  of  estimating  probabilities  is  thus  derived  from  an  ex- 
perience or  knowledge  of  the  frequency  of  this  connection 
between  the  facts  known  and  the  facts  inferred,  and  is  to  be 
acquired  by  careful  study  of  the  attributes  of  things,  and  an 
attentive  observation  of  their  mutual  relations. 

101 


§   140  FORENSIC   ORATORY. 

§  140.  Inferences :  Value  Tested  by  Reducing  to  Syllo- 
gistic Form. 

Every  inference  is  capable  of  being  stated  in  a  syllogistic 
form,  in  which  the  minor  premise  is  the  fact  from  which  the 
inference  is  drawn,  the  major  premise  is  the  relation,  and  the 
conclusion  is  the  fact  inferred.  One  of  the  most  familiar 
inferences  in  criminal  law  may  thus  be  stated  :  — 

Major  premise  :  The  recent,  exclusive,  and  unexplained 
possession  of  stolen  goods  indicates  that  the  possessor  is 
the  thief. 

Minor  premise  :  The  stolen  goods  in  question  were  found 
in  the  exclusive,  unexplained  possession  of  the  accused 
immediately  after  the  theft. 

Conclusion :  Therefore  the  accused  is  guilty  of  the 
theft. 

This  inference  is  not  a  necessary  one,  for  such  possession 
is  possible  without  guilt  on  the  part  of  the  possessor ;  but  so 
rarely  is  this  true  in  actual  experience,  that  the  inference  of 
guilt  arising  from  possession  is  highly  probable.  The  error, 
if  there  be  one,  in  this  as  in  all  other  inferences  of  fact,  is  in 
the  major  premise.  The  minor,  or  fact  proved,  presents  no 
difficulty,  and  the  conclusion,  if  the  major  be  correct,  is 
undeniable.  Hence,  in  this  method  of  investigation  it  is 
always  useful  to  formulate  the  major  premise,  and  carefully 
examine  it,  before  the  fact  which  constitutes  the  minor  is 
assumed  to  be  important ;  for  if  the  major  is  untrue  in  fact, 
or  is  too  broadly  stated,  no  reliable  conclusion  can  be  thence 
obtained.  No  one  who  should  thus  formulate  his  major 
premise,  "  He  who  stands  near  another  in  a  crowded  hall 
when  he  is  robbed  of  certain  money,  and  has  upon  his  per- 
son money  of  a  similar  appearance  and  amount,  must  be  the 
thief, ,r  would  ever  prove  his  minor  as  the  basis  of  an  infer- 
ence of  guilt.  And,  on  the  contrary,  he  who  should  state, 
"  No  man  can  with  his  own  right  hand  take  hold  of  his  right 
forearm,"  would  hesitate  to  prove  that  the  bloody  print  of  a 
102 


COLLECTION  OF  IDEAS  :  MATTERS  OF  FACT.  §  141 

right  hand  was  on  the  right  arm  of  the  dead,  or  to  infer  from 
it  that  he  was  not  alone. 

§  141.  Inferences :  Issue  Indicates  what  Facts  are  to  be 
Sought  for  by  this  Method. 
In  searching  for  ideas  by  this  method  the  advocate  is  not 
left  to  grope  his  way,  without  a  guide,  among  the  theories 
which  are  suggested  by  the  facts.  An  inference  that  does 
not  aid  him  in  his  claims  upon  the  issue  is  of  as  little  value 
to  him  as  an  irrelevant  fact,  and  when  the  issue  is  discovered 
it  clearly  indicates  the  inferences  which  he  requires.  Where 
it  is  yet  unknown,  and  cannot  be  determined  until  his  knowl- 
edge of  the  facts  has  been  completed,  he  has  only  to  proceed 
with  vigilance  and  caution  from  one  fact  to  another,  at  each 
new  stage  of  information  querying  what  possibilities  the  truth 
which  he  has  ascertained  suggests,  until  all  lines  of  inquiry 
have  been  exhausted,  and  he  is  certain  that  he  knows  what- 
ever may  be  known. 


I03 


§   142  FORENSIC   ORATORY. 


CHAPTER  IV. 

OF  THE  COLLECTION  OF  IDEAS  CONCERNING  MATfERS  OF   LAW. 

§  142.  Ideas  concerning  the  Law  of  the  Cause  Collected 
by  Direct  Investigation  and  by  Inference. 
Ideas  concerning  the  production  and  admissibility  of  evi- 
dence, the  legal  relation  of  the  facts  proved  to  the  issue,  and 
the  principles  which  govern  the  decision  of  the  cause,  must 
be  obtained,  wherever  the  rules  of  law  are  formally  expressed, 
by  the  direct  examination  of  those  rules  themselves.  When 
no  formal  statement  of  a  rule  touching  the  point  in  question 
can  be  found,  the  principle  controlling  it  may  be  inferred 
from  other  rules,  and  be  made  law  by  receiving  the  express 
sanction  of  the  court.  These  methods  of  investigating  law 
are  equally  legitimate,  and  though  the  former  is  more  certain 
and  direct,  and  in  many  cases  excludes  the  latter,  yet  when 
the  latter  can  be  properly  employed  its  ultimate  results  are 
of  no  less  authority. 

§  143.    Direct  Investigation :    Formal  Statements   of  the 
Law :    Classes  of. 
The  formal  statements  of  the  law  are  contained  in  statutes, 
definitions,  maxims,  precedents,  and  rules  of  court.     Among 
these  statements,  statutes,  including  those  written  constitu- 
tions which  grant  or  limit  governmental  power,  occupy  the 
highest  rank.     Maxims  and  definitions,  deriving  their  author- 
ity from  universal  assent  as  well  as  from  judicial  sanction, 
stand  next  in  order.     Precedents,  or  decisions  by  which  new 
rules  are  formulated,  although  they  are  expressions  of  the 
law,  yet  until  by  long  observance  they  become  established 
104 


COLLECTION   OF   IDEAS:     MATTERS   OF   LAW.      §   145 

principles  of  action,  are  liable  to  be  reversed  or  modified, 
and  hence  are  guides  of  less  reliability.  The  rules  of  court, 
subordinate  as  they  are  to  statutes  and  to  precedents,  although 
embodying  many  of  the  weightiest  maxims  of  the  law,  are 
properly  the  last  in  legal  obligation. 

§  144.     Direct  Investigation  :   Statutes. 

Statutes,  except  when  they  refer  to  subjects  of  a  recent 
origin,  are  always  in  some  measure  related  to  the  doctrines 
of  the  common  law.  Certain  statutes  declare  and  confirm 
these  doctrines  ;  others  complement,  or  alter,  or  apply  them. 
A  written  constitution  is  the  enactment  of  a  people  who 
already  had  their  settled  theories  of  political  power  and  duty, 
which  it  is  the  object  of  their  constitution  to  realize  and 
execute.  In  the  light  of  these  antecedent  principles  and 
doctrines  must  the  constitution  and  the  statutes  be  inter- 
preted. The  entire  written  law  connected  with  the  sub- 
ject, and  the  entire  common  law  as  modified,  extended, 
or  restricted  by  the  written,  must  be  examined,  not  as  if 
their  various  provisions  were  the  isolated  fragments  of  a 
broken  chain,  but  as  one  complete,  harmonious,  and  organic 
whole. 

§  145.    Direct  Investigation :   Definitions  and  Maxims. 

The  definitions  and  maxims  of  the  common  law  are  the 
formal  expressions  of  the  fundamental  principles  on  which 
the  system  of  the  law  is  based.  They  are  the  result  of  ages 
of  elaboration,  and  have  received  the  approval  and  submis- 
sion of  the  great  exponents  of  the  law  in  every  generation. 
When  properly  applied,  they  are  recognized  by  all  courts  as 
correct  statements  of  the  law,  which  no  man  is  at  liberty  to 
dispute  or  to  ignore.  A  definition  is  the  enumeration  of  the 
essential  attributes  which  characterize  a  legal  entity,  whether 
it  be  a  right  or  duty,  a  contract  or  a  crime.  A  maxim  is  the 
technical  expression  of  some  legal  proposition  which  is  uni- 

105 


§   145  FORENSIC    ORATORY. 

versally  admitted  as  just  and  reasonable.  It  is  so  called 
(maxime)  because  it  hath  the  greatest  dignity,  the  most 
certain  authority,  and  is  in  the  highest  possible  degree 
approved  by  all  men.  Maxims  embrace  rules  of  evidence 
and  of  construction,  as  well  as  rules  of  legal  obligation. 
Some  of  them  in  a  single  sentence  contain  the  entire  law  of 
a  subject,  and  answer  every  question  which  its  consideration 
may  involve.  Taken  together,  they  constitute  a  body  of  law 
of  small  dimensions  and  easy  of  remembrance,  invaluable  to 
the  advocate,  not  only  from  its  accuracy,  brevity,  and  clear- 
ness, but  from  its  familiarity  to  all  who  are  connected  with 
the  practical  administration  of  the  law. 


§  146.    Direct  Investigation  :   Precedents. 

Decisions  of  the  same  questions  by  the  courts  of  last 
resort  in  the  same  jurisdiction  have,  until  overruled,  the  force 
of  law.  The  opinion  of  the  judge  who  utters  the  decision 
must  here  be  carefully  distinguished  from  the  decision  of  the 
court  itself.  The  decision  is  the  judgment  of  the  entire 
court,  or  a  sufficient  number  of  the  judges,  upon  a  legal 
proposition  submitted  to  them,  and  nothing  more.  The 
scope  of  this  decision,  and  the  rule  of  law  which  it  enun- 
ciates, can  be  determined  only  by  ascertaining  the  facts  in 
controversy,  and  the  legal  questions  which  arose  out  of  these 
facts  and  were  submitted  to  the  judgment  of  the  court,  and 
were,  moreover,  passed  upon  by  it  in  rendering  the  decision. 
But  the  reasonings  by  which  the  judgment  is  supported,  and 
the  illustrations  by  which  it  is  explained,  are  the  mere  private 
utterance  of  the  judge,  and  of  no  higher  authority  than  if  de- 
livered by  him  in  an  argument  as  a  lawyer  at  the  bar.  Before 
reiving  on  a  decision  as  a  guide,  it  is  also  essential  to  deter- 
mine the  exact  identity  of  the  points  now  in  question  with 
the  points  then  decided.  Every  cause  is  a  fact,  or  an  aggre- 
gation of  facts,  out  of  which  arise  certain  legal  questions  ; 
1 06 


COLLECTION   OF  IDEAS:    MATTERS  OF  LAW.      §  147 

and  a  decision  is  an  answer  to  these  questions  in  their  con- 
nection with  those  specific  facts.  Questions  of  the  same 
general  character  arising  out  of  different  facts  do  not  consti- 
tute the  same  case,  nor  do  they  necessarily  demand  the  same 
decision.  Hence,  a  decision  is  law  only  for  cases  involving 
the  same  facts,  and  presenting  the  same  questions.  As  to 
all  other  cases,  it  is  but  the  basis  of  an  inference. 


§  147.    Direct  Investigation :  Rules  of  Practice. 

Practice  embraces  all  those  methods  of  procedure  which, 
either  by  judicial  order  or  by  long  usage  and  obedience, 
have  become  established  as  the  customs  of  the  court.  They 
relate  not  merely  to  the  conduct  of  a  trial,  but  to  all  other 
matters  which  are  not  regulated  by  the  provisions  of  the 
statutes,  or  by  the  maxims,  definitions,  and  decisions  of  the 
common  law.  They  bind  the  court  as  well  as  the  parties, 
and  can  be  departed  from  by  either  only  when  superior 
authority  or  manifest  reason  and  justice  so  require.  They 
constitute  the  atmosphere  in  which  the  advocate  lives  during 
the  presentation  of  his  cause  to  the  judge  or  jury,  and  form 
the  medium  through  which  he  communicates  with  the  oppos- 
ing counsel,  the  witnesses,  and  the  court.  They  are  the  actual 
interpreters  of  law,  the  concrete  form  in  which  its  theories 
and  propositions  are  embodied,  the  application  of  its  rules 
to  the  practical  and  personal  affairs  of  men.  The  law  of 
evidence,  however  stated  in  the  books,  is  really  the  ruling  of 
the  court  upon  the  special  inquiry  to  which  objection  has 
been  made.  The  law  defining  right  and  wrong  is  only  that 
which  the  judge  gives  the  jury  as  their  guide  in  determining 
the  issues  in  the  cause.  "Praxis  judicium  est  interpres 
legum "  is  thus  a  maxim  which  does  not  so  much  confer 
authority  as  formulate  an  inevitable  truth  ;  and  hence,  in 
weighing  any  legal  question  which  is  to  be  submitted  to  a 
court,  its  rules  of  practice  must  be  properly  regarded. 

107 


§   148  FORENSIC   ORATORY. 

§  148.  Inferences  of  Law :  their  Sources,  Forms,  and 
Tests  of  Value. 
The  sources  from  which  inferences  of  law  may  be  de- 
rived are:  (1)  The  settled  principles  expressed  in  statutes, 
definitions,  maxims,  precedents,  and  rules  of  practice  ;  (2)  De- 
cisions of  the  same  point  in  other  jurisdictions ;  (3)  Decis- 
ions in  analogous  causes;  (4)  Considerations  of  public 
policy  and  of  the  general  spirit  of  the  law.  The  primitive 
forms  to  which  these  inferences  may  be  reduced,  and  the 
tests  by  which  their  value  may  be  measured,  are  similar  to 
those  already  predicated  of  inferences  of  fact. 

§  149.    Inferences  from  Settled  Principles  of  Law. 

The  inferences  derived  from  settled  principles  of  law  are 
beyond  all  others  numerous,  direct,  and  conclusive.  Many 
of  these  are,  in  effect,  merely  the  application  of  a  general 
rule  to  its  particular  subject  matter,  —  the  inference  that 
what  is  true  or  false  of  a  whole  class  of  cases  is  true  or  false 
of  each  case  \vhi^h  that  class  includes.  Others  result  in  the 
exclusion  from  the  case  of  certain  rules  as  inconsistent  with 
the  general  rules  that  govern  the  entire  class  to  which  the 
case  belongs.  Others  deduce  from  such  a  principle  the 
falsity  of  one  of  two  alternatives,  and  by  this  means  the  other 
alternate  is  demonstrated.  Others  extend  a  principle  to  a 
new  class  of  cases  through  their  analogy  to  other  cases  in 
which  the  principle  has  been  applied ;  and  others  still  create 
new  principles  possessing  certain  characteristics  of  the  old, 
but  differing  from  them  in  particular  provisions  to  which  the 
present  case  cannot  conform.  In  the  syllogistic  statement  of 
these  inferences  the  major  premise  is  generally  the  usual 
rule  ;  the  minor  is  the  assertion  of  inclusion  or  analogy ;  and 
the  conclusion  is  the  rule  desired.  In  such  a  syllogism,  if 
the  general  rule  is  correctly  stated,  the  error,  when  there  is 
one,  will  be  discovered  in  the  minor  premise  ;  for  if  the  case 
is  not  included  in  or  similar  to  the  class  to  which  the  prin- 
108 


COLLECTION  OF   IDEAS  :    MATTERS  OF  LAW.      §   1 50 

ciple  applies,  the  inference  must  fail.  Sometimes  it  is  the 
more  convenient  form  of  statement  to  reverse  this  order, 
asserting  in  the  major  the  inclusion  or  analogy ;  and  not 
infrequently  the  inference  requires  a  series  of  successive 
syllogisms,  by  which  from  one  step  to  another  the  evolution 
of  the  elements  of  the  main  inference  proceeds.  In  every 
instance,  however,  if  the  general  principle  has  been  correctly 
stated,  and  is  clearly  understood,  the  error  to  be  dreaded  is 
in  whatever  portion  of  the  argument  asserts  the  relation  of 
the  present  case  to  those  to  which  the  principle  belongs. 

§  150.    Inferences  from  Decisions  in  Other  Jurisdictions. 

The  inference  drawn  from  a  decision  of  the  point  in  ques- 
tion in  another  jurisdiction  proceeds  on  the  assumption  that 
the  law  of  the  two  jurisdictions  is  the  same.  In  such  an 
inference  the  major  premise  is  the  statement  of  the  law  as  it 
exists  in  the  state  where  the  question  was  decided,  the  minor 
is  the  assertion  that  the  law  of  the  two  states  on  this  point  is 
identical.  The  minor,  therefore,  is  the  doubtful  premise, 
and  by  its  truth  or  falsehood  the  value  of  the  inference  is 
estimated.  No  state  recognizes  the  decisions  of  another  as 
possessing  any  controlling  authority.  It  is  at  liberty  to  fol- 
low them  or  not,  as  it  deems  best.  One  court,  however, 
rarely  does,  and  perhaps  never  should,  depart  from  a  settled 
current  of  decisions  upon  any  question,  —  the  universality  of 
a  legal  judgment  giving  it  great  weight,  and  indicating  that 
the  contrary  doctrine  is  impracticable  and  hazardous.  When 
such  a  current  of  decisions  can  be  found,  the  inference  which 
they  afford  is,  therefore,  next  in  value  to  those  drawn  from 
precedents  and  principles  already  recognized  in  his  own 
jurisdiction.  Where  courts  in  different  states  disagree  in 
their  judgments  upon  any  question,  the  value  of  such  judg- 
ments in  the  present  case  depends  in  part  upon  the  jurisdic- 
tion from  which  they  proceed,  and  in  part  upon  the  court 
which  rendered  the  decision.     The  courts  of  one  state  do 

109 


§   150  FORENSIC   ORATORY. 

not  regard  the  judicial  legislation  of  all  other  states  as 
equally  entitled  to  consideration.  When  the  genius  of  their 
institutions  is  the  same,  when  their  common  law  is  derived 
from  the  same  source,  when  the  same  historical  traditions 
and  the  same  general  views  of  policy  and  equity  prevail, 
a  judgment  is  of  far  higher  authority  than  when  these  simi- 
larities do  not  exist.  The  advocate  will  soon  discover  that 
in  his  own  courts  the  opinions  of  many  others  are  of  little 
weight,  while  still  others,  in  themselves  no  more  reasonable 
or  just,  exert  a  powerful  influence.  Where  on  this  account 
decisions  have  no  special  value,  the  character  of  the  court 
deciding  the  question  becomes  an  important  element  in  esti- 
mating its  authority.  If  the  judges  composing  the  court 
were  lawyers  of  high  repute,  if  the  case  were  carefully 
argued  by  able  counsel  and  fully  considered,  if  the  opinion 
is  exhaustive,  clear,  and  reasonable,  the  decision  will  at  once 
assume  the  position  of  a  leading  case,  and  be  everywhere 
regarded  as  the  true  expression  of  the  law.  While,  on  the 
other  hand,  if  the  court  were  obscure,  the  case  submitted 
without  argument,  and  the  opinion  hasty  and  unstudied,  the 
decision  is  comparatively  worthless.  Moreover,  the  mere 
number  of  decisions  does  not  aid  the  advocate,  except  so  far 
as  number  leads  to  uniformity.  A  single  case  in  point,  aris- 
ing in  a  kindred  jurisdiction  and  decided  by  an  able  court 
after  full  argument  and  long  consideration,  is  of  more  weight 
than  a  whole  library  of  weak  decisions,  gathered  from  all 
parts  of  the  continent,  whose  authors,  though  respected  in 
their  own  jurisdictions,  are  utterly  unknown  in  his. 

§  151.    Inferences  from  Decisions  in  Analogous  Cases. 

A  case  so  far  dissimilar  to  the  one  at  bar  that  its  decision, 
though  in  the  same  jurisdiction,  cannot  be  regarded  as  a  pre- 
cedent, may  nevertheless  resemble  it  in  such  material  points 
that  the  rule  governing  the  two  should  be  the  same.  The 
law  is  a  vast  system  of  minute  regulations,  developed  by  the 
no 


COLLECTION   OF   IDEAS:    MATTERS  OF  LAW.      §151 

application  of  a  few  great  principles  to  the  affairs  of  men. 
Whenever  the  application  of  these  principles  to  one  condi- 
tion of  affairs  has  resulted  in  the  formal  statement  of  a  rule, 
that  rule  becomes  the  law  for  all  identical  conditions  of 
affairs.  And  as  these  principles  can  never  change,  when  a 
new  case  arises  the  rule  which  it  demands  must  correspond 
with  pre-existing  rules  in  such  proportion  as  the  new  condi- 
tion of  affairs  is  like  the  old.  This  mode  of  reasoning  from 
similarities  is  analogy.  In  its  syllogistic  form  the  major  prem- 
ise asserts  the  similarity  between  the  case  decided  and  the 
present  case,  the  minor  states  the  doctrine  of  the  cited  case, 
and  the  conclusion  predicates  the  same  rule  of  the  case  at 
bar.  The  error,  of  which  in  this  form  of  inference  there  is 
great  danger,  will  always  be  found  in  the  major  premise- 
The  doctrine  of  the  cited  case  is  generally  clear  enough  to 
defy  serious  attack ;  but  the  assertion  of  such  similarity  be- 
tween the  cases  as  warrants  the  extension  of  the  rule  to  both 
is  often  utterly  without  foundation.  Hence,  in  employing 
analogous  cases  as  the  bases  of  his  inferences,  the  advocate 
should  formulate  his  dangerous  premise  with  especial  care, 
and  thoroughly  test  its  accuracy  and  truth.  It  is  in  this 
department  of  legal  inference  that  the  most  splendid  tri- 
umphs of  forensic  reasoning  are  achieved.  It  may  win  a 
cause  to  discover  and  produce  an  exactly  parallel  case  from 
an  authoritative  court,  but  the  victory  is  due  rather  to  the  ig- 
norance or  folly  of  the  adversary,  in  contending  in  the  face  of 
an  established  rule,  than  to  any  skill  or  learning  of  the  victor. 
The  construction  and  application  of  a  statute  by  the  ordinary 
methods  of  interpretation  are  only  a  step  higher.  But  when 
some  new  question  calling  for  judicial  legislation  has  arisen, 
and  all  the  light  which  falls  upon  it  from  the  past  shines 
through  the  medium  of  analogous  cases,  the  true  work  of 
the  lawyer  and  the  court  begins,  and  then,  if  ever,  do  both 
display  the  vast  resources  of  jurisprudence,  and  become  not 
mere  explorers,  but  creators  of  the  law. 

Ill 


§  I$2  FORENSIC   ORATORY. 

§  152.  Inferences  from  Considerations  of  Public  Policy, 
and  from  the  General  Spirit  of  the  Law, 
Some  of  the  most  conclusive  inferences  concerning  points 
not  yet  decided  are  drawn  from  considerations  of  public  pol- 
icy, and  from  the  general  spirit  of  the  law.  The  fundamen- 
tal duty  of  all  government  is  to  protect  the  common  interests 
of  the  whole  people,  even  at  the  expense  of  personal  and 
local  interests.  The  entire  system  of  the  law  is  characterized 
by  this  idea.  Examples  where  the  individual  suffers,  in  or- 
der that  a  rule  necessary  for  the  whole  should  be  observed, 
constantly  occur.  The  rule  that  negotiable  paper,  in  the 
hands  of  a  bona  fide  holder  for  value,  shall  be  collectable  at 
all  events  from  the  maker,  is  necessary  to  the  proper  main- 
tenance of  commercial  relations,  and,  no  matter  how  unjust 
or  injurious  it  may  be  to  enforce  it  in  a  particular  case,  the 
rule  must  be  observed,  and  the  individual  must  suffer. 
Courts,  therefore,  in  deciding  new  questions  are  compelled 
to  estimate  the  effect  of  their  decision  on  the  public  inter- 
ests ;  and  public  policy,  which  is  the  duty  of  the  court  to 
protect  public  interests,  forbids  a  judgment  calculated  to 
impair  them.  The  same  considerations  which  control  the 
courts  in  their  decision  on  a  point  entirely  new  are  not  with- 
out weight  on  the  question  whether  an  old  decision  shall  be 
abrogated  or  confirmed.  In  spite  of  constitutions  and  decis- 
ions the  world  moves  on,  and  changes  in  the  political  or 
social  theories  of  men  demand  continual  progress  in  the  law. 
That  application  of  a  principle  which  was  just  and  reason- 
able in  a  former  age  may  be  in  this  productive  only  of  disas- 
ter ;  and  the  same  public  policy  which  then  demanded  its 
adoption  may  now  imperatively  call  for  its  repeal.  Courts 
are  not  wholly  deaf  to  such  a  call,  and  though  with  extreme 
caution,  and  perhaps  by  numerous  successive  steps,  they 
still  conform  to  the  demand  of  public  interest  and  current 
thought,  and  overrule  or  modify  existing  law. 

112 


COLLECTION  OF  IDEAS:  MATTERS  OF  LAW.   §  1 53 

§  153.  Inferences  of  Law,  Correctly  Drawn  by  the  Advo- 
cate and  the  Court  from  the  same  Premises, 
•will  be  Identical. 
In  reasoning  from  these  considerations,  as  well  as  from 
decisions  and  analogous  cases,  the  advocate  is,  of  course, 
merely  anticipating  and  forecasting  the  decision  of  the  court 
upon  the  points  in  question.  To  one,  however,  who  is  truly 
qualified  for  his  position,  this  fact  involves  no  serious  diffi- 
culty. The  principles  of  law,  by  which  the  question  is  to  be 
decided,  are  equally  well  known  to  him  and  to  the  court. 
The  facts  from  which  the  question  has  arisen  are  ascertain- 
able by  him  if  he  pursues  his  inquiries  with  diligence,  and 
can  be  made  apparent  to  the  court  if  he  presents  them  with 
persistency  and  skill.  The  application  of  the  same  principles 
to  the  same  facts  ought  to  and  will  produce  the  same  results, 
whether  the  application  be  performed  by  thorough  lawyers 
on  the  bench  or  by  a  thorough  lawyer  at  the  bar.  Peculiar 
difficulties  inherent  in  peculiar  cases  do  no  doubt  occur,  the 
final  solution  of  which  must  be  matter  of  conjecture  rather 
than  of  judgment,  and  with  no  certain  guide  for  either  court 
or  counsel  their  respective  guesses  may  not  always  corre- 
spond. New  subjects  hitherto  unknown  in  law,  where  from 
the  yet  uncertain  character  and  bearing  of  the  facts  com- 
posing them  doubt  may  exist  as  to  the  principles  to  be 
applied,  often  present  this  difficulty,  and  for  a  time  experi- 
ence this  evil.  But  when  a  given  condition  of  affairs  has 
been  so  far  developed  as  to  acquire  a  character  determina- 
ble in  the  law,  the  only  chance  of  disagreement  between  the 
judges  and  the  advocate  is  found  in  want  of  knowledge  or 
in  want  of  dialectic  skill.  If  these  are  wanting,  the  court 
and  counsel  have  themselves  to  blame. 


113 


154  FORENSIC  ORATORY. 


CHAPTER  V. 

OF  THE  SELECTION  AND  CLASSIFICATION   OF   IDEAS. 

§  154.    Selection  of  Ideas. 

There  are  fevy  causes  in  which  this  method  of  investiga- 
tion, if  faithfully  pursued,  does  not  result  in  the  collection  of 
numerous  ideas.  Among  these  there  are,  however,  many 
which,  though  eminently  useful  during  the  investigation,  are 
of  no  value  when  the  inquiry  is  at  an  end,  either  because 
they  cannot  be  legally  presented  to  the  triers,  or  can  exercise 
no  favorable  influence  on  their  decision.  Immediately  after 
this  investigation,  therefore,  follows  a  process  of  selection,  by 
which  the  chaff  is  separated  from  the  wheat,  and  the  ideas 
serviceable  to  the  advocate  are  alone  retained. 


§  155.  Selection  of  Ideas :  Rejection  of  Unavailable  Ideas  . 
Classification  of  Available  Ideas. 
As  the  first  step  in  this  process,  every  fact  that  is  not 
already  known  and  cannot  be  directly  proved  or  logically 
inferred  from  other  facts  already  known  or  provable,  every 
legal  proposition  which  does  not  rest  on  sound  deduction  or 
on  recognized  authority,  and  every  idea,  whether  of  law  or 
fact,  which  is  not  sufficiently  connected  with  the  issue  to  affect 
its  decision,  is  excluded  from  further  consideration.  In  this 
exclusion  the  advocate  should  err  rather  through  an  excess  of 
rigor  than  by  undue  indulgence  toward  any  doubtful  matters, 
since,  of  whatever  value  these  may  have  already  proved,  their 
further  presence  in  the  cause  can  only  be  a  source  of  weak- 
ness, either  by  embarrassing  his  judgment  as  to  its  merits  and 
114 


SELECTION   AND     CLASSIFICATION   OF   IDEAS.     §   1 56 

requirements,  or  by  offering  vulnerable  points  for  attack,  of 
which  his  adversary  will  not  fail  to  take  advantage.  The 
remaining  ideas  are  then  to  be  grouped  in  four  divisions  : 

( 1 )  The  ideas  directly  favorable  to  his  side  of  the  cause  ; 

( 2 )  The  ideas  directly  unfavorable  ;  (3)  The  ideas  qualify- 
ing or  negating  favorable  ideas;  (4)  The  ideas  qualifying 
or  negating  unfavorable  ideas  ;  —  thus  exhibiting  the  entire 
cause  to  his  own  mind  as  it  will  finally  be  presented  to  the 
court,  with  all  its  points  of  strength  and  points  of  weakness 
arrayed  in  opposition  to  each  other. 


§  156.  Classification  of  Ideas  :  its  Importance :  Enables 
the  Advocate  Properly  to  Advise  his  Client. 
This  presentation  of  the  entire  cause  to  the  advocate,  at 
this  stage  of  the  proceedings,  serves  several  important  pur- 
poses. It  is  his  fundamental  duty  fully  to  comprehend 
his  case  before  he  ventures  to  advise  his  client  whether  to 
compromise,  abandon,  or  contest  it ;  and  after  he  has  com- 
prehended it,  to  give  him  such  advice  as  the  facts  and  the 
law  require,  honestly  and  regardless  of  consequences.  In 
actual  practice  there  often  are,  however,  influences  operating 
upon  his  mind  which  tend  to  obscure  his  vision  and  pervert 
his  judgment.  Nothing  is  more  natural  than  that  an  ardent 
advocate  should  so  zealously  espouse  the  claims  of  his  client 
as  to  become  most  desirous  that  they  should  prevail,  and 
that,  misled  by  this  desire,  he  should  unconsciously  endeavor 
to  create  a  cause  in  which  success  may  certainly  be  secured. 
The  young  lawyer  is  especially  liable  to  feel  that,  in  what- 
ever business  is  intrusted  to  his  care,  he  must  discover  some 
way  to  realize  his  client's  hopes,  and  that  if  he  cannot  find  a 
way  he  must  make  one.  That  this  view  of  the  duty  and 
position  of  the  advocate  is  utterly  erroneous  needs  no  proof. 
It  is  no  part  of  his  vocation  to  create  a  case.  In  most 
instances  the  cause  exists,  in  the  completeness  of  its  facts 

115 


§  156  FORENSIC   ORATORY. 

and  obligations,  before  his  connection  with  it  has  com- 
menced, and  his  sole  duty  is  to  investigate  it  thoroughly 
and  properly  present  it  to  the  court.  Intentionally  to 
broach  and  maintain  legal  propositions  which  he  knows  to 
be  fallacious,  or  to  assert  and  make  pretence  of  proving  a 
claim  of  fact  which  he  believes  to  be  without  foundation,  is 
a  gross  breach  of  his  official  oath,  and  is  almost  certain  to 
result  in  the  failure  of  his  cause.  If  on  the  facts  and  law, 
as  far  as  these  are  ascertainable,  he  has  no  case,  it  is  his 
business  to  discover  it  and  so  inform  his  client,  in  order  that 
the  adversary,  with  whom  resides  the  legal  right,  may  have 
his  remedy  without  delay.  Even  in  criminal  causes,  where 
the  law  holds  no  man  guilty  unless  his  guilt  is  capable  of 
being  legally  proved,  the  advocate  can  go  no  farther  in  pro- 
tecting the  actual  criminal  than  to  secure  for  him  his  legal 
rights,  and  hold  the  commonwealth  to  the  complete  proof  of 
the  crime  alleged.  It  is,  however,  unfortunately  true  that 
contrary  practices  prevail,  and  that  an  advocate  is  often 
expected  to  contrive  defences  where  no  real  defence  exists, 
and  to  find  solid  basis  for  a  claim  which  has  no  actual  sup- 
port either  in  the  facts  or  in  the  law.  Hence  the  strong 
temptation  which  sometimes  besets  him  to  search  for  those 
ideas  only  which  uphold  the  theory  he  wishes  to  confirm, 
and  to  ignore  or  undervalue  those  ideas  which  contradict  or 
qualify  his  claims.  This  temptation  cannot  safely  or  honor- 
ably be  encouraged.  The  judges  and  the  jury  will  not 
experience  it.  The  case  will  appear  to  them  as  it  really  is, 
if  the  opposing  advocate  is  diligent  and  skilful,  and  in  their 
desire  to  do  their  duty  they  will  give  little  heed  to  fantastic 
theories.  No  better  method  of  escaping  this  temptation, 
and  of  overcoming  it  when  it  occurs,  can  be  desired  than 
the  attentive  examination  of  the  ideas  presented  by  the 
cause  itself,  grouped  in  this  fourfold  manner,  with  their 
connections  and  antagonisms  thus  disclosed. 


116 


SELECTION   AND    CLASSIFICATION   OF   IDEAS.     §   1 58 

§  157.    Classification  of  Ideas  :   Exhibits  the  Value  of  each 
Idea  as  a  Factor  in  the  Cause. 

This  classification  also  enables  the  advocate  to  estimate 
every  idea,  favorable  or  unfavorable,  at  its  true  value  as  a 
factor  in  the  cause  for  the  consideration  of  the  jury  or  the 
court.  The  force  of  the  impression  made  upon  the  mind  by 
any  idea  depends,  in  part  at  least,  upon  the  character  of  the 
impressions  concurrently  received ;  and  inasmuch  as  all  the 
ideas  in  the  cause  are  to  be  presented  with  substantial  simul- 
taneousness  to  the  hearers,  the  result  of  one  can  be  deter- 
mined only  by  viewing  it  in  its  relation  to  the  others.  An 
idea,  too  trifling  in  itself  to  demand  a  moment's  notice,  often 
becomes  the  key  of  the  whole  case  through  its  connection 
with  other  ideas,  to  which  it  gives  a  new  character  and  sig- 
nificance. An  idea,  which  alone  may  seem  conclusive  of  the 
issue,  may  be  so  modified  and  attenuated  by  the  operation 
of  its  related  ideas  as  to  render  little  service.  The  markings 
of  a  bullet  found  within  a  body  are  in  themselves,  perhaps, 
of  little  consequence ;  but  when  their  correspondence  with 
the  groovings  of  the  victim's  pistol,  and  their  want  of  corre- 
spondence with  the  groovings  of  the  pistol  of  the  accused, 
are  demonstrated,  they  assume  the  highest  importance  upon 
the  question  of  suicide  or  murder.  A  receipt  in  full  appears 
sufficient  to  defeat  the  claim,  until  the  fact  that  it  is  based  on 
a  mistaken  balance,  or  was  obtained  without  the  full  concur- 
rence of  the  maker,  is  made  manifest.  The  true  value  of 
an  idea  to  the  advocate  is,  therefore,  its  value  as  determined 
by  its  inherent  force,  qualified  by  all  the  other  ideas  presented 
in  connection  with  it,  and  thus  its  real  utility  can  be  estimated 
only  by  viewing  it  in  the  midst  of  these  connections. 

§  158.    Classification  of  Ideas :    Enables  the  Advocate  to 
Forecast  the  Operations  of  his  Adversary. 
Where  the  mental  habits  and  proclivities  of  the  opposing 
advocate  are  known,  this  mode  of  classification  also  indicates 

117 


§  158  FORENSIC   ORATORY. 

the  issues  which  he  will  create,  and  the  methods  of  aggres- 
sion or  defence  that  he  will  probably  employ.  The  adversaries 
of  an  advocate  are  usually  his  own  associates,  frequently  his 
most  familiar  friends  ;  and  if  he  has  made  a  proper  study  of 
their  modes  of  thought,  and  of  their  management  of  causes 
at  the  bar,  he  should  find  little  difficulty  in  forecasting  the 
manner  in  which  any  case  will  be  conducted  by  them  when 
once  its  various  elements  are  clearly  spread  before  him. 
Such  knowledge  enables  him  not  only  to  construct  his  cause 
more  securely,  covering  its  weakness  and  displaying  all  its 
strength,  but  often  also  to  turn  away  the  attention  of  the 
adversary  from  his  own  designs,  and  in  the  heat  of  conflict 
to  take  him  unawares. 

§  159.  Selection  of  Classified  Ideas :  Principles  Govern, 
ing  the  Selection. 

The  real  merits  of  his  cause,  and  the  actual  condition  in 
which  it  is  likely  to  appear  to  the  court  when  the  testimony 
is  concluded  and  the  adverse  argument  is  made,  being  thus 
fully  comprehended  by  the  advocate,  he  may  then  proceed 
to  the  selection  of  those  ideas  by  which  he  will  endeavor  to 
support  his  claims,  and  secure  from  his  auditors  a  favorable 
judgment.  In  making  this  selection  he  must  have  regard  : 
(1)  To  the  character  of  his  auditors,  their  present  attitude 
toward  his  cause  and  the  ideas  which  it  embodies  ;  (2)  To 
the  manner  in  which  they  will  be  affected  by  the  media 
through  which  his  ideas  are  to  be  presented  to  them. 

§  160.  Selection  of  Classified  Ideas  :  Value  of  an  Idea 
Determined  by  the  Character  and  Attitude  of 
the  Hearer. 

One  of  the  most  dangerous  errors  into  which  the  advocate 
can  ever  fall,  is  that  of  measuring  the  value  of  the  ideas  col- 
lected by  him  according  to  the  strength  of  the  impression 
which  they  make  on  his  own  mind.     No  less  reliable  test 

Il8 


SELECTION   AND    CLASSIFICATION   OF   IDEAS.    §   l60 

than  this  affords  could  be  imagined.  The  impression  made 
by  any  idea  on  the  mind  depends  so  largely  on  the  previous 
disposition  and  mental  habit  of  the  individual  addressed,  that 
no  similarity  of  impression  from  the  same  idea  is  probable, 
unless  the  habits  and  predispositions  of  the  persons  are  the 
same.  Hence,  separated  as  the  advocate  generally  is  from 
'  his  auditors  by  his  natural  characteristics,  his  education,  and 
his  interest  in  the  cause,  the  likelihood  that  matters  which 
impress  him  strongly  will  have  a  similar  effect  on  them  is 
too  small  to  warrant  his  adoption  of  his  own  feelings  as  a 
guide  in  the  selection  of  his  method  of  affecting  theirs.  And 
inasmuch  as  all  the  ideas  presented  in  the  cause  are  designed 
solely  to  influence  those  by  whom  it  is  to  be  decided,  no  fact 
or  argument  will  be  of  any  value  unless  it  produces  in  their 
minds  an  impression  favorable  to  his  case ;  and  no  fact  or 
argument  by  which  a  favorable  impression  is  produced  will 
be  useless,  however  insignificant  and  worthless  it  may  seem 
to  the  advocate  himself.  Next  in  the  order  of  performance 
to  the  duty  of  fully  mastering  his  case,  though  equal  to  it  in 
importance  and  necessity,  is  thus  the  duty  of  understanding 
the  temper  and  predisposition  of  his  hearers.  In  reference 
to  the  judges,  this  duty  involves  little  difficulty.  Few  in 
number,  exercising  their  functions  within  narrow  territorial 
limits,  taken  directly  from  the  bar  and  still  intimately  asso- 
ciated with  their  former  brethren,  no  advocate  of  ordinary 
astuteness  is  long  without  a  fair  acquaintance  with  their 
natural  tendencies  and  modes  of  thought.  Their  personal 
characteristics  also,  more  than  those  of  other  men,  enter  into 
their  daily  lives  and  manifest  themselves  in  their  official  con- 
duct. They  are  subject  to  few  counterchecks,  seldom 
reminded  of  their  own  failings,  flattered  by  those  for  whom 
they  decide  and  fawned  upon  by  those  who  seek  their  favor- 
able judgment,  and  under  such  influences,  unconsciously 
often  to  themselves,  their  idiosyncrasies  develop  into  such 
extremes  as  to  constitute  a  most  important  and  apparent 

119 


§   l6o  FORENSIC    ORATORY. 

factor  in  every  case  where  their  judicial  action  is  invoked. 
In  reference  to  the  jury  this  task  is  much  more  troublesome. 
Most  of  them  are  generally  strangers  to  the  advocate,  per- 
haps also  strangers  to  the  parties,  to  the  officers  of  the  court, 
and  to  one  another.  Even  among  their  neighborhood  ac- 
quaintances little  is  known  concerning  their  real  interior 
dispositions,  and  access  to  such  sources  of  information  is 
also  usually  impracticable.  Having  exhausted  all  his  means 
of  personal  investigation,  the  advocate  must  fall  back  on  his 
general  knowledge  of  the  thoughts  and  feelings  which  actu- 
ate the  classes  of  mankind  to  whom  the  members  of  the  jury 
may  belong.  He  must  consider  the  temper  of  the  times, 
the  current  of  popular  opinion,  the  prejudices  of  locality  and 
race,  and  all  the  other  influences  to  which  they  are  subjected, 
and  which  he  may  have  opportunity  to  ascertain.  In  this 
mode  he  may  almost  always  arrive  at  a  sufficiently  complete 
view  of  their  characters  and  dispositions  to  enable  him  to 
select  his  ideas,  and  to  determine  on  the  method  in  which 
they  can  be  most  effectively  presented. 

§  161.  Selection  of  Classified  Ideas :  Ideas  to  be  Selected 
in  View  of  their  Known  Effect  upon  the  Hearers. 
Ideas  should  be  selected  by  the  advocate  in  view  of  their 
known  effect  upon  the  auditor.  To  a  jury  with  whom  he  is 
personally  unacquainted  only  the  most  general  and  evident 
ideas  can  be  safely  suggested.  Matters  which  are  apparent 
to  all  men  of  their  class  will  be  apparent  also  to  them,  and 
principles  and  lines  of  conduct  which  the  class  approves 
they  will  be  ready  to  admit  and  to  pursue.  Any  descent  into 
particulars,  any  assertion  of  special  theories  and  duties,  is 
likely  to  arouse  some  secret  prejudice,  to  stir  some  long  con- 
cealed antagonism,  and  create  an  enemy  where  he  seeks  a 
friend.  As  knowledge  guides  him  to  the  ideas  which  he 
may  employ,  ignorance  warns  him  what  to  leave  unuttered, 
and  to  content  himself  with  urging  home  the  thoughts  which, 
1 20 


SELECTION   AND   CLASSIFICATION   OF   IDEAS.     §    162 

while  they  excite  no  hostility,  impress  upon  the  jury  the 
justice  of  his  cause  and  win  their  favor  for  his  client.  The 
same  course  is  to  be  pursued  in  reference  to  an  unknown 
judge.  The  existence  in  him  of  peculiar  aptitudes  for  the 
discovery  of  truth,  of  extraordinary  learning  or  clear-sighted- 
ness, of  any  leaning  toward  or  against  certain  legal  theories, 
must  never  be  presumed.  With  him,  as  with  an  unknown 
jury,  the  advocate  should  take  his  stand  on  those  truths 
which  all  judges  alike  acknowledge,  and  urge  his  cause  by 
those  general  considerations  which  possess  universal  control 
over  the  judicial  mind.  All  that  he  knows  will  serve  him  he 
is  at  liberty  to  use,  but  of  employing  that  concerning  which 
he  has  no  perfect  knowledge  let  him  as  far  as  possible 
beware. 

§  162.  Selection  of  Classified  Ideas :  Ideas  to  be  Selected 
in  View  of  the  Medium  through  which  they  must 
be  Presented  to  the  Hearer. 

In  making  this  selection  the  advocate  must  also  have 
regard  to  the  method  by  which  the  idea  is  to  be  presented 
to  the  hearer.  The  natural  effect  of  an  idea  upon  the  mind 
is  largely  modified  by  the  character  of  the  medium  through 
which  it  is  conveyed.  The  same  principle  of  law  which 
when  enunciated  by  certain  judges,  or  explained  by  certain 
commentators,  appears  too  simple  and  self-evident  to  permit 
discussion  or  dispute,  when  proceeding  from  the  lips  or  pens 
of  others  loses  half  its  force.  The  same  fact  which  when 
testified  to  by  a  witness  well  known  to  a  jury,  or  of  appar- 
ently estimable  character,  is  accepted  by  them  as  completely 
proved,  if  resting  on  the  evidence  of  a  stranger  of  ill  appear- 
ance or  of  alien  race  is  received  with  hesitation,  and  some- 
times not  believed  at  all.  It  may  be  true  that  at  the  time 
of  the  commission  of  the  crime  the  accused  was  in  a  far 
distant  place,  and  could  have  had  no  possible  connection 
with  it.     If  the  witnesses  by  whom  this  fact  can  be  estab- 

121 


§  1 62  FORENSIC   ORATORY. 

lished  are  above  suspicion,  and  can  testify  in  an  impressive 
and  convincing  manner,  no  stronger  defence  than  such  an 
alibi  could  be  desired.  But  if  the  witnesses  are  of  doubtful 
character,  of  suspicious  manner,  of  dull  and  hesitating  utter- 
ance, the  advocate  would  do  well  to  seek  for  his  defence 
elsewhere.  The  idea  actually  impressed  upon  the  auditor  is 
not  the  idea  as  it  might  be  categorically  stated  by  the  advo- 
cate, or  as  it  exists  in  the  fact  which  it  represents,  but  it  is 
the  sum  total  of  the  impression  made  upon  the  auditor  by 
the  idea  itself  and  the  medium  through  which  it  is  conveyed. 
For  this  reason  it  sometimes  occurs  that  from  the  manner  in 
which  a  witness  testifies  to  a  fact,  in  itself  true  and  undis- 
puted, the  jury  are  convinced  that  no  such  fact  exists,  — 
the  ultimate  impression  on  their  minds  being  the  exact  con- 
trary of  the  evidence  and  of  the  truth.  Too  little  attention 
to  this  subject  is  often  given  by  advocates.  If  a  fact  exists, 
and  somebody  will  swear  to  it  and  none  can  contradict  it, 
they  assume  the  fact  to  be  established,  and  to  constitute  a 
proper  matter  to  be  offered  to  the  jury.  Or  if  a  legal  rule 
which  justifies  their  position  can  be  found  in  some  obscure 
treatise,  or  decided  case  of  no  great  repute,  and  no  decision 
or  assertion  to  the  contrary  can  be  discovered,  they  rest  on 
it  as  settled  law,  and  stake  upon  its  soundness  the  future  of 
their  cause.  To  any  one  of  sober  thought  it  is  no  wonder 
that  cases  thus  supported  and  presented  fail,  while  counsel 
who  are  themselves  in  fault  deplore  the  stupidity  of  juries 
and  the  uncertainty  of  verdicts.  The  same  counsel  sitting  in 
the  place  of  judgment,  without  interest  in  the  cause,  and 
receiving  the  same  ideas  through  the  same  media,  would 
probably  arrive  at  the  same  conclusion  as  the  jury  whom 
they  ridicule,  or  the  judges  whom  they  blame. 

§  163.    Arrangement  of  Selected  Ideas. 

The  ideas  thus  selected  by  the  advocate  for  presentation 
to  the  court  should  next  receive  such  general  arrangement  as 
122 


SELECTION  AND   CLASSIFICATION   OF  IDEAS.    §    1 63 

shall  give  each  its  best  effect,  and  enable  each  to  render  to 
the  others  its  fullest  support.  In  the  movement  of  the  minds 
of  the  auditors  from  present  indifference  to  favorable  decision 
they  will  pass  through  four  stages  of  thought  and  feeling, 
arising  in  the  following  order:  (1)  Interest  in  the  advocate 
or  the  cause  ;  (2)  Knowledge  of  the  claims  of  the  advocate  ; 
(3)  Belief  in  their  truth ;  (4)  Determination  to  acknowledge 
and  enforce  them.  The  same  order,  therefore,  should  govern 
the  succession  of  ideas  by  which  these  dispositions  are  to  be 
produced  ;  and  in  his  final  classification  of  the  ideas  he 
intends  to  use  the  advocate  should  place  (1)  the  ideas  which 
conciliate  or  attract  the  attention  of  the  jury ;  (2)  the  ideas 
which  reveal  the  nature  of  the  cause,  and  the  claims  of  the 
advocate  concerning  it;  (3)  the  ideas  which  establish  the 
truth  of  those  claims  ;  and  (4)  the  ideas  which  develop  con- 
viction into  persuasion,  and  arouse  the  strongest  impulses 
which  the  cause  permits.  This  arrangement  constitutes  the 
scheme  by  which  his  future  conduct  of  the  case  is  guided, 
and  by  which  every  presentation  of  ideas  to  the  court  and 
jury  is  controlled. 


123 


§   164  FORENSIC   ORATORY. 


CHAPTER  VI. 

OF   THE    PRESENTATION    OF    IDEAS    BY  THE   PRODUCTION    OF 
EVIDENCE   IN   COURT. 

§  164.  Forensic  Oratory  Communicates  Ideas  to  the 
Hearers  in  Many  Ways  during  the  Conduct 
of  the  Trial. 

In  many  forms  of  oratory  the  ideas  of  the  orator  are  com- 
municated to  his  hearers  entirely  by  his  own  spoken  words. 
In  forensic  oratory,  on  the  contrary,  various  other  methods 
of  communication  are  employed,  some  of  which  are  only  less 
efficacious  than  the  formal  oration  itself.  In  fact,  the  whole 
conduct  of  the  trial  is  an  act  of  oratory ;  the  impressions 
made  upon  the  court  and  jury  by  each  word  and  incident 
during  its  progress  being  favorable  or  unfavorable  to  the  re- 
sult at  which  he  aims.  All  that  occurs  in  the  impanelling 
or  challenge  of  the  jurors,  in  the  argument  of  preliminary  or 
interlocutory  questions,  in  the  production  of  evidence,  and 
in  the  altercation  of  the  opposing  advocates  ;  the  statements 
of  the  witnesses,  together  with  their  personal  appearance, 
manners,  and  apparent  truthfulness  or  falsehood  ;  the  atti- 
tude of  the  court  toward  the  parties,  witnesses,  and  coun- 
sel ;  —  all  these  directly  operate  upon  the  minds  and  hearts 
of  the  judge  or  jury,  and  influence  the  decision  at  which 
they  eventually  arrive.  Hence  always  and  everywhere  the 
advocate  should  keep  before  him  both  the  advantages  and 
exigencies  of  his  cause,  that  he  may  make  the  most  of  every 
favorable  event,  and  avoid  or  palliate  the  circumstances 
which  might  prejudice  his  claims. 
124 


PRODUCTION   OF   EVIDENCE   IN   COURT.      §    1 66 

§  165.  Production  of  Evidence  in  Court  not  a  Mere  Search 
for  Information. 
The  production  of  evidence  in  court  is  too  often  regarded 
by  the  advocate  as  a  mere  process  of  investigation,  and  is 
pursued  by  him  as  if  his  only  object  were  to  elicit  informa- 
tion from  the  witnesses  for  future  use.  That  this  is  one  of 
its  essential  purposes,  and  that  it  sometimes  serves  this  pur- 
pose in  a  most  efficient  manner,  is  doubtless  true  ;  and  hence 
it  may  be  properly  considered  as  an  act  of  invention.  But 
such  is  not  its  principal  design.  The  advocate  is  presumed 
to  know  already,  and  so  far  as  possible  is  bound  to  know, 
every  fact  which  is  material  to  his  cause.  But  the  law  does 
not  permit  him  to  communicate  these  facts  directly  to  the 
jury,  however  competent  his  knowledge  and  reliable  his  words. 
It  prescribes  certain  methods  by  which  they  must  be  estab- 
lished, and  until  established  in  these  methods  prohibits  their 
consideration.  These  methods,  the  principal  of  which  is  the 
production  of  evidence  in  court,  it  places  at  the  disposal  of 
the  advocate,  in  order  that  through  them  he  may  assert  and 
demonstrate  the  facts  on  which  his  claims  are  based.  The 
witnesses  presented  by  the  advocate  are  thus  the  channels 
through  which  he  transmits  his  knowledge  to  the  jury.  Their 
testimony  is  not  their  act ;  it  is  his  act.  They  have  no  option 
whether  to  be  heard  or  to  be  silent.  They  have  no  control 
over  the  ideas  which  they  possess.  They  are  permitted  to 
convey  no  further  information  than  his  inquiries  evoke,  and 
when  relevant  to  his  questions  their  answers  are  received  as 
his  assertion  of  the  fact  disclosed.  Through  them  he  speaks. 
Their  words  supply  expression  to  his  thought ;  their  utterance 
and  manner  for  the  time  being  are  his  own. 

§  166.    The  Production  of  Evidence  in  Court  a  Complete 
Oratorical  Act 

The  production  of  evidence  in  court  is,  moreover,  in  its 
real  character,  a  complete  oratorical  act.     Its  object  is  not 

I25 


§   1 66  FORENSIC    ORATORY. 

only  to  convince,  but  to  persuade.  It  is  intended  not  merely 
to  demonstrate  certain  propositions,  but  to  present  them  with 
such  energy  as  to  excite  the  impulses  to  which  they  cor- 
respond. The  oral  testimony  of  a  prepossessing  witness,  if 
skilfully  arranged  and  agreeably  and  forcibly  delivered,  is 
itself  a  true  oration.  It  conciliates  the  hearer  toward  the 
witness,  and  also  toward  the  cause  for  which  his  evidence  is 
given.  It  produces  faith  in  the  correctness  of  his  assertions, 
and  awakens  sympathy  with  him  in  his  apparent  interest  in 
those  who  call  him.  It  engenders  a  conviction  that  the 
party  for  whom  he  appears  is  in  the  right,  and  a  disposition 
to  express  this  conviction  by  a  favorable  verdict.  It  often 
has  more  influence  than  the  utterances  of  the  advocate  him- 
self, since  no  suspicion  that  he  acts  a  part  attaches  to  a  wit- 
ness, and  his  disinterestedness,  if  not  established,  is  generally 
presumed. 

§  167.  Importance  of  Properly  Selecting,  Training,  and 
Presenting  "Witnesses. 
From  this  view  of  the  real  character  and  purpose  of  the 
evidence  produced  in  court  arise  several  practical  sugges- 
tions concerning  the  choice  and  preparation  of  the  witnesses, 
as  well  as  the  order  and  method  of  their  examination  in  the 
presence  of  the  jury.  As  no  wise  client  would  select  a  diffi- 
dent or  witless  advocate  to  represent  him  in  the  conduct  of 
his  cause,  so  no  wise  advocate  will  voluntarily  present  his 
ideas  to  a  jury  through  a  vacillating  or  repulsive  witness.  A 
witness  is  not  a  magazine  in  which  ammunition  is  deposited, 
and  therefore  useful  in  proportion  to  the  quantity  which  he 
contains.  He  is  a  weapon  through  whom  shot  and  shell  are 
to  be  hurled  against  the  foe  ;  a  rifled  cannon  when  his  evi- 
dence is  prompt  and  positive  ;  a  wretched  popgun,  provok- 
ing contempt  for  the  whole  battery,  when  his  words  are 
hesitating  or  his  purpose  weak.  It  is  impossible  to  render 
testimony  impressive  by  accumulating  feeble  and  forgetful 
126 


PRODUCTION   OF  EVIDENCE   IN   COURT.      §   1 67 

witnesses.  Mere  number  is  not  strength.  The  weight  of 
evidence  cannot  be  ascertained  by  counting  polls.  The 
advocate  who  seriously  considers  that  all  his  witnesses  are  to 
speak  for  him,  that  they  are  actually  his  associate  advocates, 
and  that  the  effect  which  they  produce  will  be  as  strong  and 
permanent  as  that  resulting  from  his  own  oration,  will  need 
no  further  incentive  to  secure  such  as  possess  the  neces- 
sary qualities,  to  bestow  on  them  whatever  training  they  re- 
quire in  order  to  render  their  evidence  clear  and  forcible, 
and  to  exercise  his  highest  skill  and  sagacity  in  his  presen- 
tation of  them  to  the  jury. 


127 


§  1 68  FORENSIC   ORATORY. 


CHAPTER  VII. 

OF  THE  QUALIFICATIONS  OF  WITNESSES. 

§  168.  Qualifications  of  the  Witness  Resemble  those  of 
the  Advocate. 
The  qualifications  necessary  to  a  good  witness  are  as  nu- 
merous, and  of  as  high  an  order,  as  those  of  a  good  advocate. 
In  some  respects  their  qualifications  are  identical,  since  the 
ultimate  purpose  of  both  testimony  and  oration  is  to  con- 
vince and  to  persuade.  In  other  respects  the  position  of  the 
witness  is  the  most  important  and  the  most  difficult,  and  to 
fill  it  properly  requires  of  him  a  nobler  manhood  and  a  more 
severe  self-discipline. 

§  169.  Qualifications  of  the  "Witness  :  Clear  Ideas  of  the 
Fact  to  which  he  Testifies. 
Pre-eminent  among  the  qualifications  of  a  witness  is  the 
clear,  precise  conception  of  the  fact  to  which  he  testifies. 
If  his  ideas  concerning  it  are  confused  and  fragmentary,  if 
they  are  partly  the  result  of  his  sensations,  partly  inferences 
drawn  from  other  facts,  and  partly  half  remembered  hearsay, 
however  certain  he  may  be  of  the  truth  of  what  he  is  to  utter, 
it  will  be  of  little  value  to  the  cause  after  it  has  been  rent  and 
torn  and  twisted  by  a  dexterous  cross-examination.  No  one 
can  be  a  good  witness  who  does  not  know  what  he  knows, 
and  who  has  not  formed  in  his  own  memory  and  imagination 
such  a  complete  and  definite  representation  of  every  fact  or 
event  which  he  is  to  describe,  that  he  can  answer  positively 
and  intelligibly  any  question  that  he  may  be  asked  concern- 
ing it. 

128 


OF  THE   QUALIFICATIONS   OF   WITNESSES.     §    1 70 

§  170.  Qualifications  of  the  Witness  :  Knowledge  of  the 
Relation  between  the  Issue  and  the  Fact  to 
which  he  Testifies. 
Again,  a  witness  must  understand  the  relation  which  exists 
between  the  fact  to  which  he  testifies  and  the  issue  in  the 
cause.  This  is  essential  for  many  reasons.  The  idea  that 
he  conveys  derives  much  of  its  force  from  the  language  in 
which  it  is  expressed,  and  the  manner  in  which  it  is  enun- 
ciated. A  fact  which  he  considers  of  no  consequence  will 
naturally  be  stated  in  a  careless  manner,  and  in  words  barely 
sufficient  to  convey  his  meaning.  Thoughts  which  seem  to 
him  important  will  just  as  naturally  be  clothed  in  energetic 
and  impressive  language,  and  be  delivered  with  intensity  and 
feeling.  Almost  as  well  might  the  advocate  himself  under- 
take to  move  his  hearers  without  knowing  the  precise  object 
to  be  accomplished,  as  to  place  before  them  a  promulgator 
of  his  ideas,  who  must  control  the  method  of  their  utterance 
while  ignorant  of  the  purposes  for  which  they  are  communi- 
cated. Moreover,  as  the  witness  is  permitted  to  express  his 
ideas  only  in  response  to  the  questions  of  the  advocate,  this 
mutual  knowledge  of  the  object  sought  is  necessary  to  enable 
one  to  form,  and  the  other  accurately  to  comprehend,  the 
inquiries  by  which  the  ideas  are  to  be  elicited.  If  the  wit- 
ness understands  the  pertinency  of  his  evidence,  and  the 
general  purpose  of  the  advocate  in  presenting  it,  he  will  also 
perceive  the  meaning  of  the  detailed  questions  that  are  ad- 
dressed to  him,  and  the  answers  they  are  intended  to  evoke. 
Examining  counsel  and  a  willing  witness  are  never  at  cross 
purposes  when  they  understand  each  other ;  and  if  the  advo- 
cate is  familiar  with  the  ideas  in  the  mind  of  the  witness,  and 
the  witness  with  the  precise  object  of  the  advocate  in  calling 
out  these  ideas,  all  mistakes  on  the  part  of  the  latter,  and  all 
failures  to  elicit  ideas  by  the  former,  are  prevented.  Further- 
more, a  witness  who  knows  the  precise  application  of  his 
testimony  to  the  cause  is  far  more  secure  from  injury  by 

9  129 


§   17O  FORENSIC    ORATORY. 

cross-examination.  The  real  point  of  the  cross-examiner's 
attack  is  thus  foreknown.  On  all  other  subjects  the  witness 
answers  easily  and  fully,  without  suspicion  or  embarrassment, 
but  when  this  stronghold  of  the  cause  is  approached  he  be- 
comes cautious  and  decided,  and  misses  no  opportunity  to 
render  more  impressive  the  idea  which  he  has  previously 
conveyed.  Anyone  familiar  with  the  testimony  of  experts, 
or  of  detectives  who  have  been  engaged  in  the  preparation 
of  a  case,  must  have  remarked  the  eminent  advantage  in  all 
these  respects  enjoyed  by  one  whose  witnesses  understand 
the  cause  as  well  as  their  own  relation  to  it,  and  who  conse- 
quently know  when  and  how  to  speak  and  when  to  preserve 
silence. 

§  171.  Qualifications  of  the  Witness :  A  Good  Appearance 
and  Pleasing  Manner. 
A  witness  should  be  of  good  appearance  and  engaging 
manner.  A  frank  and  honest  countenance,  a  neat,  appro- 
priate attire,  a  modest,  courteous  demeanor,  a  good  voice, 
please  and  captivate  a  jury,  and  insure  attention  to  whatever 
such  a  witness  may  assert ;  while  their  prejudices  are  inevita- 
bly excited  against  a  mean  or  filthy  personage,  or  one  whose 
manner  is  uncouth  or  disagreeable.  Few  audiences  distin- 
guish less  between  the  thought  and  the  channel  through 
which  it  is  communicated  than  do  a  jury  receiving  ideas 
from  a  witness.  To  them  the  man  and  the  testimony  are 
but  a  single  impression,  the  character  and  credibility  of  the 
latter  depending  far  more  on  the  appearance  of  the  former 
than  on  the  inherent  truth  and  force  it  may  possess.  Skilful 
advocates  understand  this  fact  so  well  that  they  often  pro- 
duce witnesses  of  noble  mien  and  fine  deportment,  solely  on 
account  of  the  impression  which  the  appearance  of  such 
persons  on  their  side  of  the  cause  will  make  upon  the  jury, 
although  the  evidence  they  may  give  is  in  itself  of  little 
value. 

130 


OF  THE   QUALIFICATIONS   OF   WITNESSES.    §   1 72 

§  172.    Qualifications   of  the   Witness :    Familiarity   with 
Customs  and  Proceedings  of  Courts. 

Another  requisite  of  a  good  witness  is  familiarity  with  the 
customs  and  proceedings  of  the  courts.  There  is  a  natural 
tendency  in  the  human  mind  to  despise  any  individual  who 
manifests  an  inferior  knowledge  of  affairs.  A  jury,  already 
more  or  less  at  home  within  the  court-room,  are  quick  to 
notice  awkwardness  and  strangeness  in  a  witness,  and  to 
regard  him  with  a  mingled  pity  and  contempt,  scarcely  con- 
sistent with  the  submission  of  their  minds  to  his  ideas. 
Every  blunder  he  makes  intensifies  this  feeling,  and  weakens 
the  force  of  the  evidence  he  gives,  and  if  he  errs  so  far  as  to 
provoke  the  interference  of  the  judge,  they  are  more  ready 
to  require  an  apology  for  his  production  than  to  accept  his 
statements  as  their  guide.  The  witness  himself,  also,  both 
for  his  own  sake  and  that  of  the  side  that  calls  him,  needs 
such  familiarity.  A  more  trying  situation  than  that  of  a 
witness  on  the  stand  is  scarcely  imaginable.  He  is  the 
observed  of  all  observers.  The  jury,  judge,  counsel,  and 
audience  sit  gazing  in  his  face,  and  measuring  his  words. 
He  is  compelled  to  attend  to  questions,  and  instantly  con- 
ceive and  frame  his  answers.  During  a  portion  of  the  time 
he  is  liable  to  be  tormented  and  badgered  by  a  cross-exam- 
iner. He  is  ordered  to  do  this  and  that,  interrupted  when 
he  is  about  to  speak,  and  commanded  to  speak  when  he 
has  nothing  to  say.  He  is  treated  as  responsible  for  all  the 
errors  he  may  commit  against  the  rules  of  evidence  or  the 
decorum  of  the  court-room,  as  if  they  were  the  result  of 
intelligent  and  voluntary  action.  Under  such  circumstances 
an  individual  of  any  sensibility,  who  is  unaccustomed  to  the 
court,  is  necessarily  uncomfortable.  His  mind  does  not 
work  with  entire  freedom,  his  recollection  is  seldom  at  its 
best,  and  his  manner  is  prone  to  be  constrained  and  artificial. 
Every  interruption  he  experiences,  every  rebuke  he  receives, 
increases  his  embarrassment,  diminishes  the  clearness  of  his 

131 


§   172  FORENSIC   ORATORY. 

memory  and  the  positiveness  of  his  assertions,  and  disposes 
him  to  new  and  greater  blunders,  until  finally  he  loses  all  his 
certainty  of  anything,  and  becomes  an  injury  to  the  cause 
which  he  endeavors  to  uphold.  To  secure  immunity  from 
such  disasters,  the  witness  ought  to  be  habituated  to  the 
scenes  and  operations  of  the  court-room.  Not  that  the 
immunity  thus  acquired  is  perfect,  for  even  an  accomplished 
lawyer,  when  acting  as  a  witness,  will  sometimes  undergo  a 
disagreeable  experience.  But  every  one  who  is  familiar  with 
the  ways  of  courts  will  labor  under  less  embarrassment  and 
perturbation,  will  be  less  likely  to  commit  mistakes,  and  will 
do  greater  credit  to  himself  and  to  his  cause  than  he  could 
have  done  if  he  had  been  a  stranger  to  the  forum.  He  will 
at  least  understand  better  his  relations  to  the  court,  and 
realize  more  fully  that,  when  not  compelled  to  speak,  the 
safety  of  a  witness  is  his  silence. 

§  173.  Qualifications  of  the  "Witness :  Quick  Wit  and 
Sound  Judgment. 
A  prompt  and  active  intellect,  and  a  sound  judgment  as  to 
the  significance  of  human  looks  and  conduct,  are  also  neces- 
sary to  a  witness.  However  strictly  he  may  be  guarded  by 
the  advocate  during  his  direct  examination,  while  under  cross- 
examination  he  is  left  to  struggle  by  himself  against  the 
assaults  of  a  wily  and  experienced  foe.  This  is  an  emer- 
gency which  demands  the  exercise  of  his  highest  powers. 
Forced  to  reply  to  questions  whose  ultimate  purpose  he  can 
only  conjecture,  alternately  stormed  at  and  fawned  upon,  con- 
fronted with  his  answers  previously  given  and  challenged  to 
explain  apparent  inconsistencies,  whatever  keenness  of  appre- 
hension, whatever  quickness  of  wit  and  judgment,  he  may 
summon  to  his  aid,  can  never  be  superfluous.  He  should 
be  able  to  read  the  thoughts  of  men  in  their  appearance 
sufficiently  to  detect  the  difference  between  earnestness  and 
bluster,  between  a  true  consideration  for  the  difficulties  of 
132 


OF   THE   QUALIFICATIONS   OF   WITNESSES.    §   1 74 

his  position  and  the  specious  kindness  which  aims  only  to 
draw  him  into  error.  He  should  recognize  when  it  is  safe 
to  answer  boldly,  and  when  caution  is  wiser  than  defiance. 
He  should  watch  the  effect  of  the  progressing  conflict  on  the 
court  and  jury,  and  know  when  to  press  home  an  apparent 
advantage,  and  when  to  seek  a  courteous  and  secure  retreat. 
He  should  scent  danger  from  afar,  and  without  seeming 
alarm  turn  from  it  and  avoid  it.  He  should  be  sensitive- 
ness itself  to  every  look  and  hint  of  his  own  counsel  which  is 
suggestive  of  the  purpose  of  the  enemy,  and  when  that  pur- 
pose is  perceived  should  strive  himself  to  be  the  aggressor, 
and  lead  the  adversary  on  by  cunning  answers,  until  the 
opportunity  is  offered  to  state  with  renewed  vigor  some  fact 
already  mentioned,  or  to  disclose  some  new  fact  hitherto 
inadmissible.  This  contest  between  the  witness  and  the 
cross-examiner  has  always  been  regarded  as  a  most  unequal 
one,  and  in  practice  it  is  generally  so.  But  there  are  instances 
where  Greek  meets  Greek,  where  in  the  witness  box  appears 
a  witness  in  every  way  worthy  of  the  steel  of  the  inquisitor 
in  dialectic  fence,  in  readiness  of  wit,  in  knowledge  of  man- 
kind, in  definiteness  of  purpose;  and  in  the  tug  of  war 
between  such"  heroes  it  is  not  always  the  witness  who  is 
driven  to  the  wall.  Cross-examination,  ever  perilous  in 
unskilled  hands,  becomes  positively  dangerous  to  a  skilful 
advocate  just  in  proportion  as  the  witness  is  his  equal  in 
these  several  characteristics,  and  the  danger  of  the  advocate 
is  the  safety  of  the  witness. 

§   174.    Qualifications  of  the  Witness :  An  Even  Temper. 

Another  requisite  of  a  good  witness  is  an  even  temper. 
An  irritated  mind  is  rarely  gifted  with  clear  ideas  on  any 
subject,  present,  past,  or  future,  and  is  prone  to  manifest 
itself  in  exceeding  readiness  of  speech  ;  two  qualities  which 
involve  a  witness,  who  testifies  while  in  this  condition,  in 
endless  contradictions.     A  statement  made  while  under  the 

133 


§   174  FORENSIC   ORATORY. 

apparent  influence  of  passion  never  wins  belief  from  anyone, 
much  less  from  a  jury  whom  the  passion  itself,  except  in 
some  rare  cases  when  they  deem  it  justifiable,  tends  to  an- 
tagonize and  repel.  To  make  a  witness  angry  is  usually  to 
destroy  him.  As  he  loses  his  own  self-command,  he  falls 
into  subjection  to  the  hostile  advocate,  who  can  then  make 
him  appear  untruthful,  prejudiced,  unreasonable,  as  he  will. 
One  of  the  commonest  expedients  adopted  by  the  ordinary 
cross-examiner  is  to  provoke  the  witness  by  insinuation  or 
abuse  until  he  is  enraged,  and  then  lead  him  into  exaggera- 
tions and  self-contradictions  which  annihilate  the  force  of  all 
the  testimony  that  he  has  already  given.  An  unruffled  tem- 
per is  thus  essential  to  the  safety  and  influence  of  a  witness. 
Though  the  ordeal  to  which  he  is  subjected  is  sometimes 
sufficient  to  disturb  the  equanimity  of  a  saint,  he  should  be 
able  to  curb  his  indignation,  and  give  his  whole  attention  to 
the  questions  of  his  enemy  and  his  own  replies.  A  conflict 
of  this  character  is  always  brief.  No  advocate  with  any  true 
conception  of  the  interests  of  the  cause,  will  pursue  at  length 
an  unsuccessful  effort  to  irritate  a  witness.  The  preservation 
of  his  self-control  for  a  few  moments,  at  the  opening  of  the 
struggle,  is  therefore  certain  tc  give  him  the  victory,  while 
the  visible  retreat  of  his  antagonist  is  an  acknowledgment  of 
his  integrity  and  fortitude  which  the  jury  will  not  fail  to 
recollect. 

§  175.  Qualifications  of  the  "Witness :  A  Cautious  and 
Considerate  Disposition. 
For  the  same  reasons,  a  cautious  and  considerate  disposi- 
tion is  a  necessary  attribute  of  »a  good  witness.  The  witness 
who  has  already  been  examined  in  private  by  the  advocate, 
and  has  thus  discovered  what  facts  within  his  knowledge  are 
important  to  the  cause,  goes  into  the  court-room  for  the  spe- 
cific purpose  of  delivering  himself  of  this  information.  When 
called  to  testify,  the  impulse  of  a  hasty  witness  is  to  tell  all 

134 


OF   THE   QUALIFICATIONS  OF   WITNESSES.    §    lj6 

that  he  knows  without  waiting  to  be  questioned.  He  as- 
sumes that  every  inquiry  propounded  to  him  relates  to  one 
especial  subject,  and  is  thus  led  to  anticipate  the  meaning  of 
the  question,  and  answer  it  before  it  has  been  fully  stated. 
The  evils  thence  resulting  are  as  serious  as  they  are  unneces- 
sary. A  witness  speaking  under  such  an  impulse,  and  utterly 
mistaking  the  real  drift  of  the  question,  frequently  contra- 
dicts the  very  matter  he  intended  to  assert,  and  involves 
himself  in  confusion,  if  not  the  advocate  in  hopeless  perplex- 
ity. In  cross-examination  the  matter  becomes  vastly  more 
deplorable.  To  his  own  hastiness  and  want  of  due  reflection 
is  now  added  the  stimulus  presented  by  a  questioner,  whose 
only  object  it  may  be  to  confound  the  witness  and  entangle 
him  in  his  talk,  and  who  hurries  and  goads  him  .from  one 
topic  to  another  with  a  rapid  fire  of  interrogatories  which 
draw  forth  answers,  whose  folly  and  inconsistency  the  witness 
himself  sees,  but  has  no  time  or  opportunity  to  correct.  It 
is  the  duty  of  a  witness  to  listen  carefully  to  every  question 
until  it  is  completed,  to  be  certain  that  he  understands  it 
before  he  undertakes  to  answer,  and  to  reply  by  stating  just 
those  facts  within  his  knowledge  which  the  question  calls  for, 
and  no  more.  No  witness  can  do  this  without  considera- 
tion, —  a  consideration  which  requires  both  time  and  atten- 
tion, and  which  few  witnesses  while  on  the  stand  can  bestow 
unless  it  is  habitual  to  their  minds. 

§  176.    Qualifications  of  the  "Witness  :  Truthfulness. 

Finally,  a  good  witness  is  truthful.  With  a  witness  who 
intentionally  lies,  no  advocate  can  properly  and  honorably 
connect  himself.  To  employ  a  witness  because  he  lies  is 
not  merely  criminal  in  the  advocate,  but  places  him  morally 
in  the  same  condition  as  if  he  were  himself  the  perjurer.  A 
truthful  witness,  however,  is  something  more  than  one  who 
does  not  intentionally  lie.  Of  persons  who  actually  attempt  to 
tell  the  truth,  and  who  believe  they  do  tell  it,  there  are  many 

135 


§   176  FORENSIC   ORATORY. 

whose  imaginations  are  so  strong,  or  their  habitual  language 
so  exaggerated,  that  they  never  relate  facts  as  they  really  are. 
Distance,  duration,  value,  quantity,  and  many  other  matters, 
are  by  such  witnesses  constantly  overrated  or  underrated, 
according  to  the  impulse  of  the  moment  and  the  purpose 
which  they  are  endeavoring  to  accomplish ;  and  when  the 
impulse  has  passed  by,  or  the  purpose  is  forgotten,  precisely 
the  same  inquiry  elicits  an  entirely  different  reply.  A  wit- 
ness of  this  character  quickly  reveals  himself  to  the  jury, 
and  is  then  disbelieved  by  them  in  regard  to  everything 
which  he  narrates.  Moreover,  his  assertions  are  not  infre- 
quently taken  by  them  as  measures  of  the  exaggerations  and 
extenuations  of  other  witnesses,  and  when  their  statements 
agree  with  his,  so  far  from  operating  to  corroborate  his  evi- 
dence, their  testimony  is  discredited  by  his.  A  truthful  wit- 
ness is  one  who  tells  the  exact  truth,  without  increase  or 
diminution,  and  employs  language  which  conveys  the  pre- 
cise idea  which  would  be  impressed  upon  the  minds  of  the 
jury,  had  they  been  themselves  observers  of  the  fact.  Such 
a  witness  is  not  liable  to  contradict  himself,  nor  to  be  con- 
tradicted by  others.  His  statements  are  probable,  and  bear 
with  them  the  insignia  of  their  credibility.  The  jury,  im- 
pressed with  their  ability  to  confide  in  his  assertions,  give  to 
his  narrative  the  same  submission  as  to  their  personal  ob- 
servation, and  realize  that  any  conclusion  to  which  they  may 
come  upon  his  testimony  must  necessarily  be  sound.  The 
evidence  of  such  a  witness  fixes  itself  in  their  minds  as  the 
standard  of  the  truth  of  other  witnesses,  who  are  believed  or 
disbelieved  just  in  proportion  as  they  correspond  with  or  are 
opposed  to  his. 

§  177.    Qualifications  of  the  "Witness  :  Though  Good  Wit- 
nesses are  Rare,  Some  are  Usually  Obtainable. 
Witnesses  who  possess  all  these  qualifications  are   very 
rare,  even  more  rare  perhaps  than  perfect  advocates.     Still 
136 


OF  THE   QUALIFICATIONS   OF    WITNESSES.    §   1 77 

among  actual  witnesses,  as  they  are  daily  encountered  in  our 
courts,  there  is  a  wide  diversity  in  reference  to  each  one 
of  these  attributes,  and  witnesses  are  often  found  who  are 
far  advanced  toward  this  ideal.  In  most  causes  the  advo- 
cate has  some  choice  of  witnesses,  and  out  of  several  who 
have  knowledge  of  a  fact  is  compelled  to  determine  which 
and  how  many  he  will  call.  In  all  such  cases  the  character 
of  the  witness,  his  ability  to  serve  the  cause  as  indicated  by 
the  degree  to  which  he  possesses  these  qualities,  should  be 
the  only  guide,  —  not,  as  is  now  too  frequently  the  case,  the 
convenience  of  summoning  him  or  of  his  own  attendance, 
whereby  so  many  poor  witnesses  are  put  before  the  courts, 
and  so  many  good  ones  remain  unemployed. 


137 


§   178  FORENSIC   ORATORY. 


CHAPTER  VIII. 

OF  THE   TRAINING   OF  WITNESSES. 

§  178.    Training  of  Witnesses  :    How  far  Legitimate. 

Although  good  witnesses  are  very  rare,  few  witnesses  are 
so  poor  that  they  cannot  be  improved ;  fewer  still  are  so 
perfect  that  a  careful  training  will  not  render  them  more 
valuable.  In  reference  to  one  qualification,  training  is  of 
course  impossible.  Ideas  cannot  be  furnished  to  the  wit- 
ness by  the  advocate,  to  be  repeated  in  the  court-room  as  if 
they  were  derived  from  personal  observation.  But  in  regard 
to  almost  any  other  attribute  training  is  legitimate,  and  is 
certain  to  produce  desirable  results. 


§  179.  Training  of  the  Witness :  To  Make  him  Compre- 
hend the  Facts  to  which  he  Testifies. 
The  point  at  which  the  witness  and  the  advocate  first 
meet  is  the  point  at  which  the  training  of  the  former  will 
properly  begin.  When  the  advocate  has  heard  the  story  of 
the  witness,  and  has  examined  and  cross-examined  him  upon 
it  until  the  assertions  which  may  survive  may  be  relied  upon 
as  representing  facts,  these  should  be  written  down,  and  sub- 
mitted to  the  witness  as  the  statement  expected  from  him  on 
the  stand.  With  the  facts  embodied  in  this  statement  he 
should  be  made  thoroughly  familiar,  by  directing  his  attention 
closely  to  their  details,  and  to  their  relation  to  other  facts, 
until  he  sees  each  in  all  its  aspects  and  understands  its  full 
significance. 
138 


OF  THE  TRAINING   OF  WITNESSES.         §   l8l 

§  180.  Training  of  the  "Witness  :  To  Make  him  Compre- 
hend the  Relation  between  the  Issue  and  the 
Facts  to  which  he  Testifies. 
The  bearing  of  these  facts  upon  the  issue  should  now  be 
explained  to  him,  and  he  should  be  made  to  see  how  one 
form  of  answer  to  a  question  may  promote,  and  a  different 
form  might  prejudice,  the  cause.  He  should  be  taught  the 
relations  of  each  item  of  his  knowledge  to  the  controverted 
point,  and  be  shown  the  danger  of  uncertainty  or  untruth- 
fulness in  any  of  his  replies.  With  a  dull  witness  both  this 
task  and  the  preceding  one  are  very  difficult,  and  require 
more  patience  than  some  advocates  possess.  But  the  desired 
result  can  be  accomplished  by  perseverance  and  encourage- 
ment, and  after  all  it  is  but  another  form  of  the  labor  that 
must  be  expended  on  the  slow-witted  juror,  who  must  be 
made  in  the  same  manner  to  recognize  the  relations  between 
fact  and  issue,  and  the  consequences  to  which  the  testimony 
of  this  witness  leads.  No  time  or  skill  invested  in  the  cause 
pays  better  in  the  end  than  this.  It  changes  the  entire  posi- 
tion of  the  witness  before  the  court.  It  makes  him  an  active 
worker  in  the  case,  when  he  is  othenvise  but  passive.  It 
clothes  him  with  a  conscious  power  to  labor  for  the  success 
of  the  cause,  and  gives  him  a  courage  and  independence 
which,  as  the  mere  repository  of  information,  he  could  never 
have  obtained.  The  advocate  who  can  put  before  the  jury 
an  array  of  witnesses  thoroughly  cognizant  of  the  facts  they 
are  to  narrate,  and  of  the  effect  of  each  fact  on  the  issue, 
must  have  a  poor  and  most  unworthy  cause  if,  in  addition 
to  such  evidence,  it  requires  much  of  his  personal  effort  to 
achieve  a  triumph. 

§  181.    Training  of  the  Witness  :    To  Cultivate  his  Appear- 
ance and  Manners. 
The  appearance  and  manner  of  a  witness,  if  in  any  respect 
objectionable,  are  also  susceptible  of  much  improvement  by 

139 


£  l8l  FORENSIC   ORATORY. 

a  little  careful  discipline.  Between  the  barber,  the  bath-tub, 
and  the  clothing  store,  any  sober  man  can  be  made  present- 
able ;  and  female  witnesses  must  be  lost  indeed  if,  when  the 
means  are  put  at  their  disposal,  they  fail  to  appear  neat  and 
respectable  in  a  public  court-room.  The  same  pains  may  be 
sometimes  profitably  expended  on  a  client,  especially  on  the 
defendant  in  a  criminal  cause,  who  should  never  be  permit- 
ted to  appear  before  his  triers  until  he  has  been  made  as 
prepossessing  in  appearance  as  the  circumstances  will  permit. 
Faults  of  the  witness  in  utterance  and  manner,  forwardness, 
fflippancy,  timidity,  hesitation  or  rapidity  in  speech,  a  low  or 
mumbling  voice,  must  be  pointed  out  to  him,  and  the  im- 
portance of  improvement  duly  urged  upon  him  by  explaining 
the  reasons  of  their  ill  effect  upon  the  cause.  If  he  is  willing 
to  reform,  practice  and  drill  with  the  advocate  or  his  assist- 
ant will  render  an  essential  service.  He  can  be  taught  to 
speak  slowly,  modestly,  and  audibly ;  to  restrain  his  natural 
impetuosity ;  to  forego  his  disposition  to  assert  himself  out  of 
regard  to  the  importance  of  the  cause  ;  to  lay  aside  his  dread 
and  nervousness  in  order  simply  to  narrate  what  he  saw  or 
heard.  Rarely,  however,  is  the  fruit  of  such  a  discipline 
permanent.  The  faults  corrected  are  the  faults  of  disposi- 
tion reflected  in  the  manners,  and  though  they  may  be 
temporarily  removed  by  earnest  self-control,  yet  when  the 
restraint  is  over  the  reaction  follows  and  the  faults  return. 
Hence  the  advocate  should  never  cease  his  training  of  the 
witness  until  the  testimony  has  been  received,  or  if  cessation 
does  occur,  the  discipline  should  be  renewed  before  the  trial, 
and  the  witness  be  thenceforward  held  in  check  till  it  is 
ended. 

§  182.    Training  of  the  Witness  :    To  Familiarize  him  with 
Court  Proceedings. 
Familiarity   with   the   court-room    is   of  course   easy    to 
acquire.     Male  witnesses  can  be  sent  there  to  remain  as 
140 


OF  THE   TRAINING   OF   WITNESSES.         §   1 83 

spectators  of  other  causes  until  they  become  thoroughly  at 
home,  and  are  accustomed  to  the  methods  of  the  judges, 
the  warfare  of  the  advocates,  and  the  general  rules  of  court 
decorum.  Female  witnesses,  so  far  as  practicable,  should 
be  subjected  to  the  same  preparation,  but  when  impracticable 
they  may  all  be  gathered  in  the  court-room  at  the  opening 
of  the  cause,  and  by  attentive  watchfulness  will  learn  in  a  few 
hours  enough  to  render  their  position  on  the  witness-stand 
tolerably  secure.  The  practice  of  secluding  lady  witnesses 
in  some  quiet  anteroom,  until  the  time  for  their  examination 
comes,  is  not  only  a  mistaken  kindness  to  the  witnesses 
themselves,  but  deprives  the  cause  of  that  support  which 
their  collective  presence  in  the  court-room  on  its  behalf 
affords  the  advocate ;  while  their  own  testimony  is  far  less 
likely  to  be  positive  and  clear,  than  if  they  had  become  ac- 
customed to  their  surroundings,  and  had  listened  to  the  other 
witnesses. 

§  183.  Training  of  the  Witness :  To  Endure  Cross- 
Examination. 
The  preparation  of  the  witness  for  his  cross-examination  is 
aided  by  every  form  of  discipline  to  which  he  is  subjected. 
There  are,  however,  two  which  are  properly  confined  to 
this  specific  object.  The  witness  must  be  warned  that  the 
exterior  ferocity  of  his  future  adversary  will  be  apparent 
only,  and  that  his  smiling  friendliness  is  far  more  to  be 
dreaded  than  his  snarl.  If  not  of  ready  wit,  he  must  be 
taught  to  watch  the  questions  narrowly,  to  reply  cautiously 
and  in  as  brief  and  apt  a  sentence  as  is  possible,  to  beware 
of  committing  himself  on  any  point  as  to  which  he  is  not 
entirely  sure,  and  never  to  attempt  to  explain  or  reconcile 
any  asserted  or  suspected  inconsistency  in  his  evidence 
until  requested  to  do  so  by  his  own  counsel.  In  order  to 
accustom  him  to  follow  this  advice,  the  advocate  must 
afford  him  opportunities  to  practice  it  by  cross-examining 

141 


§   1 83  FORENSIC   ORATORY. 

him  upqn  the  evidence  he  is  to  give,  and  subjecting  him  to  as 
severe  a  trial  as  he  is  likely  to  encounter  in  the  court.  By 
t  these  methods  even  a  dull  and  timid  witness  may  be  brought 
into  a  state  of  combined  callousness  and  caution  which  will 
strip  his  cross-examination  of  its  dangers.  A  quick-witted 
and  courageous  witness  needs  a  different  preparation.  He 
is  not  deceived  by  either  frowns  or  smiles,  and  the  principal 
effect  upon  him  of  the  examination,  to  which  he  is  subjected, 
is  to  foment  in  him  a  desire  to  have  an  equal  hand  in  the 
forensic  duel.  For  this  purpose  he  should  be  provided  with 
the  proper  weapons.  So  far  as  the  questions  of  the  adversary 
can  be  foreseen  or  conjectured,  his  answers  to  them  should  be 
selected  with  a  view  to  give  the  most  effectual  aid  to  his  own 
side  of  the  cause,  and  as  far  as  possible  to  destroy  the  enemy. 
Important  matters,  which  cannot  be  in  any  other  manner 
introduced,  may  thus  be  brought  to  the  attention  of  the 
jury,  to  the  confusion  of  the  questioner  and  the  advantage 
of  the  cause ;  and  if  the  witness  be  exceptionally  able,  this 
preparation  may  extend  so  far  as  to  include  a  plan  of  answers 
which  shall  lead  the  adversary  into  questions  that  will  open 
evidence  othenvise  inadmissible,  and  result  in  disclosures  of 
the  most  damaging  and  even  fatal  character. 

§  184.    Training  of  the  Witness :  To  Control  his  Irritable 
Temper. 
When  a  witness  is  of  irritable  temper,  no  preparation  will 
avail  to  overcome  it.     He  may  be  cautioned  to  restrain  him- 
self and  will  promise  so  to  do,  but  in  all  probability  the  first 
provocation  will  destroy  his  self-command,  and  he  will  mani- 
fest his  anger  in  the  readiest  mode  that  is  presented  to  him. 
The  duty  of  the  advocate  is  to  provide  him  with  such  easy 
and  effective  methods  of  explosion,  and  thus  direct  in  his 
own  favor  the  wrath  which  he  cannot  hope  to  quench.    Facts 
concerning  the  opposite  party  and  derogatory  to  his  charac- 
ter or  his  cause,  or  matters  relating  to  the  cross-examiner 
142 


OF  THE  TRAINING    OF   WITNESSES.  §   1 86 

himself,  may  thus  be  recalled  to  his  mind,  to  be  employed 
by  him  in  quick  retaliation  for  the  insults  to  which  ne  deems 
himself  subjected,  —  serving  the  double  purpose  of  keeping* 
his  temper  down  by  giving  it  a  safety  valve  for  its  escape, 
and  of  creating* ideas  in  the  jury  to  which  no  direct  testi- 
mony could  ever  be  admitted.  A  dangerous  witness  may 
in  this  manner  be  changed  into  a  highly  useful  one,  and  be 
supplied  with  weapons  by  which  in  most  cases  he  can 
speedily  silence,  if  not  overcome,  his  foe,  and  win  at 
once  the  sympathy  of  the  jury  and  the  forbearance  of  the 
court. 

§  185.    Training  of  the  "Witness  :   To  Make  him  Cautious 
and  Considerate. 

Caution  and  consideration  are  also  attributes  which  no 
training  will  be  sufficient  to  bestow.  The  exterior  appear- 
ance of  these  qualities  may  be  temporarily  assumed,  and 
may  serve  highly  useful  purposes,  but  the  interior  disposi- 
tion cannot  be  easily  acquired.  Though  the  tongue  be 
silent  and  the  brow  wrinkled  with  the  lines  of  thought,  the 
half-considered  answer  is  in  the  mind  before  the  question 
is  completed,  and  will  be  ultimately  stated  in  the  same 
imperfect  form.  To  inculcate  caution,  to  warn  the  witness 
to  attend  closely  to  the  questions  and  be  sure  he  understands 
them  before  he  undertakes  the  answers,  is  of  course  the  part 
of  every  advocate ;  but  in  the  first  heat  of  examination  these 
admonitions  are  forgotten,  and  the  impetuous  disposition 
again  disturbs  the  action  of  his  mind.  With  all  the  dis- 
cipline which  the  advocate  can  give  to  such  a  witness,  he 
will  still  remain  a  danger  and  a  difficulty,  to  be  most 
strenuously  watched  and  guided  during  the  reception  of 
his  evidence. 

§  186.    Training  of  the  Witness  :  To  Render  him  Truthful. 

The  untruthful  witness,  inaccurate  as  he  may  be  in  his 
ideas  and  expressions,  is  capable  of  profitable  training.     The 

143 


§   1 86  FORENSIC   ORATORY. 

advocate  who  listens  to  his  story  will  easily  perceive  the 
peculiar  exaggerations  to  which  he  is  subject,  and  can  deter- 
mine whether  it  be  the  fault  of  his  imagination,  or  only  of  his 
words.  An  error  of  this  character  in  his  imagination  may  be 
removed  by  compelling  him  to  measure  his  ideas  by  known 
external  standards.  Extravagant  ideas  concerning  time  or 
distance  or  momentum  may  be  corrected  by  repeated  experi- 
ments, in  which  the  power  to  estimate  those  attributes  of 
things  is  cultivated.  The  like  is  true  of  value,  speed,  sound, 
weight,  illumination,  temperature,  of  the  expression  of  the 
human  countenance,  of  the  identity  of  persons,  objects,  and 
handwriting ;  in  fine,  of  all  those  matters  wherein  the  fact  to 
which  the  witness  testifies  is  necessarily  a  conclusion  of  his 
own  from  other  facts  that  he  does  not  relate.  All  of  these 
particulars  the  witness  can  be  taught,  in  a  short  time,  to  meas- 
ure with  sufficient  accuracy  to  enable  him  to  state  facts  as 
they  really  were,  and  to  avoid  alike  the  exposure  of  his  own 
absurdity  on  cross-examination,  and  a  contradiction  by  wit- 
nesses whose  memories  and  judgments  are  more  accurate 
than  his.  Extravagant  language  is  a  habit  of  expression, 
generally  consisting  in  a  careless  and  unwarrantable  use  of 
adjectives,  sometimes  of  nouns  and  verbs.  It  is  a  fault  of 
which  the  witness  is  himself  usually  unconscious,  and  fre- 
quently exists  in  impetuous  and  demonstrative  individuals. 
It  is  to  be  remedied,  like  any  other  fault  in  speech,  by  self- 
watchfulness  and  the  correction  of  a  kindly  friend.  The 
advocate  should  never  suffer  the  witness  to  employ  such 
language  in  their  private  interviews.  He  should  require 
him  to  narrate  his  facts  in  proper  words,  correct  every 
tendency  to  overstate  or  understate  a  circumstance,  and 
compel  him  then  and  there  to  restate  it  as  he  ought.  The 
particular  faults  of  this  kind  in  any  individual  are  few,  and 
can  generally  be  overcome  with  patience  and  courage,  as 
indeed  they  must  be  before  the  witness  ought  to  be  trusted 
in  hostile  hands. 
144 


OF  THE   TRAINING   OF   WITNESSES.  §   1 88 

§  187.    Training  of  the  Witness  :   A  Difficult  and  Tedious 
Task. 

The  proper  training  of  a  witness  demands  on  the  part  of 
the  advocate  the  highest  skill  and  the  most  scrupulous  hon- 
esty ;  skill,  by  which  he  detects  the  faults  to  be  remedied 
and  devises  methods  to  correct  them  ;  honesty,  which  pre- 
vents him  from  employing  this  necessary  discipline  in  such 
a  manner  as  to  make  the  witness  the  vehicle  of  falsehood 
and  injustice.  No  exigency  of  his  cause  can  justify  the 
slightest  deviation  from  the  truth,  and  no  interest  in  his 
client  can  excuse  any  act  or  influence  of  his  whereby  the 
witness,  however  willing,  is  induced  to  represent  the  facts 
otherwise  than  as  he  himself  perceives  them.  It  may  be 
true  that  certain  advocates  abuse  these  opportunities,  and 
train  their  witnesses  to  state,  perhaps  even  to  believe,  mat- 
ters which  have  no  existence  outside  their  perverted  memo- 
ries or  lying  tongues.  This  constitutes  no  reason  why  the 
honest  lawyer  should  not  sedulously  improve  his  correspond- 
ing privilege,  however  carefully  he  avoids  following  their 
example. 

§  188.  Training  of  the  Witness :  Renders  the  Production 
of  Evidence  Easier  and  More  Certain. 
The  training  of  the  witnesses  has  another  use  besides  the 
preparation  of  the  witness  for  the  court.  It  relieves  the  advo- 
cate from  the  gravest  difficulty  which  he  ever  encounters,  — 
the  production  of  his  facts  to  the  jury  by  eliciting  them  from 
unfamiliar  witnesses.  The  extraction  of  testimony  from  un- 
trained witnesses  is  a  most  dangerous  and  laborious  opera- 
tion. Although  the  advocate  may  have  a  general  idea  of  the 
facts  which  are  within  their  knowledge,  and  from  their  per- 
sonal appearance  may  form  some  opinion  of  the  proper 
method  of  approaching  them,  yet  to  obtain  these  facts  in 
their  true  character,  and  without  risk  to  other  portions  of  his 
cause,  severely  taxes  the  most  competent  examiners.     The 

io  l45 


§    1 88  FORENSIC   ORATORY. 

witness  and  the  counsel  in  such  cases  have  never  met  on 
common  ground.  Neither  can  understand  the  mental  habits 
of  the  other,  nor  comprehend  the  meaning  he  attaches  to 
his  words.  The  advocate  can  ascertain  how  to  approach  the 
witness  only  from  his  general  appearance  or  from  informa- 
tion often  wholly  unreliable.  The  witness  has  not  learned  to 
trust  the  advocate,  and  labors  under  the  constant  fear  of 
being  led  into  a  false  position,  or  of  disclosing  that  which  he 
is  not  desired  to  tell.  Though  both  may  have  precisely  the 
same  end  in  view,  this  strangeness  to  each  other  breeds  a 
species  of  antagonism  between  them,  manifesting  itself  in 
mutual  misunderstandings  and  corrections,  by  which  the 
value  of  the  testimony  is  destroyed  and  the  advocate  himself 
discomfited.  Even  when  the  witness  is  his  own  client,  from 
whom  he  has  received  the  knowledge  which  he  now  seeks  to 
produce  before  the  jury,  the  chances  are  that  without  thor- 
ough training  the  witness  and  the  advocate  will  soon  be  at 
cross-purposes,  the  former  answering  anything  but  the  real 
questions  of  the  latter,  the  latter  chiding  and  discrediting  the 
very  person  whose  cause  he  is  endeavoring  to  uphold.  There 
are  few  advocates  whom  inevitable  circumstances  have  not, 
at  one  time  or  another,  placed  in  this  position,  and  none  who 
have  experienced  it  will  underrate  the  importance  of  a  per- 
sonal training  of  the  witnesses,  and  of  the  consequent  corre- 
spondence between  the  movements  of  his  mind  and  theirs. 

§  189.    Training  of  the  Witness :  Relieves  the  Advocate  of 
much  Perplexity  during  the  Trial. 
Moreover,  a  careful  preparation  of  the  witnesses  vastly 
increases  the  power  and  energy  of  the   advocate  himself. 
Upon  the  trial  of  the  cause  he  will  require  all  the  sagacity, 
penetration,  and  sound  judgment  with  which  nature  and  his 
education  have  endowed  him.       For  the  full  exercise  of  fac- 
ulties like  these  his  mind  must  be  free  from  anxiety,  and  his 
temper  must  be  undisturbed.     But  if  his  witnesses  are  un- 
146 


OF  THE  TRAINING   OF  WITNESSES.         §   1 89 

known  to  him,  if  their  statements  are  indefinite  and  ill 
expressed,  if  they  are  awkward  and  unprepossessing,  if  they 
are  ignorant  of  courts  and  constantly  involved  in  conflict 
with  the  judge  and  counsel,  if  they  are  angry  or  frightened 
or  extravagant,  the  advocate' cannot  remain  calm  and  placid, 
and  preserve  his  intellectual  clearness  and  acumen  unob- 
scured.  In  such  a  situation  the  advocate  sustains  an  abso- 
lute and  appreciable  loss  of  power.  He  may  survive  it,  and 
his  cause  may  triumph.  But  it  is  a  hazard  which  he  has 
no  right  to  incur,  and  a  self-depreciation  which  his  own 
interests  should  forbid  him  to  permit.  The  sense  of  per- 
sonal comfort  and  of  mastery  over  his  case  which  is  en- 
gendered by  the  foreknowledge  of  what  the  evidence  of 
every  witness  is  to  be,  and  that  he  will  acquit  himself  in  a 
manner  favorable  to  those  who  call  him,  is  worth  all  the 
trouble  that  the  most  extended  and  laborious  preparation 
may  demand. 


147 


§   190  FORENSIC   ORATORY. 


CHAPTER  IX. 

OF  THE   DIRECT   EXAMINATION   OF   WITNESSES. 

§  190.  Production  of  Evidence  Must  be  Governed  by- 
Oratorical  Rules  :  Evidence  Must  be  Intelligible, 
Convincing,  and  Persuasive. 

The  production  of  the  evidence  in  court,  like  every  other 
oratorical  act,  should  possess  the  three  characteristics  of 
adaptation  to  the  hearers,  of  constant  progress  toward  the 
end  desired,  and  of  vivacity  and  force  in  its  presentation 
of  ideas.  The  facts  narrated  by  the  witnesses  should  be 
brought  entirely  within  the  comprehension  of  the  jury. 
They  should  be  so  arranged  as  first  to  conciliate,  then  to 
convince,  and  finally  to  persuade.  They  should  be  exhib- 
ited in  so  many  different  aspects,  and  expressed  in  such 
variety  of  language,  as  to  enchain  attention  and  render  their 
impression  intense  and  vivid  in  the  highest  possible  degree. 
Thus,  in  its  sphere,  the  examination  of  the  witnesses  in 
court  will  follow  the  same  rules,  and  will  attain  the  same 
result,  as  the  oration  of  the  advocate  himself. 

§  191.    All   Evidence,   except  that  of  Experts,   Naturally 
Intelligible :    Production  of  Expert  Evidence. 
With  the  exception  of  expert  and  scientific  evidence,  all 
testimony  is  in  its  own  nature  usually  intelligible.     This  class 
of  evidence  relates  to  facts  which  in  themselves  are  difficult 
to  understand,    and  whose  relations  to  other  facts  are  un- 
known to  the  jury  and  cannot  easily  and  briefly  be  explained. 
It  is  too  often  presented  through  witnesses  whose  self-conceit 
and  pedantry  raise  an  additional  barrier  between  its  hearers 
and  the  knowledge  which  they  would  acquire ;  and  in  such 
148 


DIRECT   EXAMINATION   OF  WITNESSES.       §   19I 

cases  the  endeavors  of  an  advocate,  whose  comprehension  of 
the  subject  scarcely  exceeds  that  of  the  jury,  to  simplify  and 
humanize  the  technical  narrations  of  the  witness  alone  are 
needed  to  render  the  confusion  hopelessly  inextricable.  If 
evidence  of  this  class  is  to  be  of  any  service,  it  must,  of 
course,  be  fully  understood.  It  is  the  duty  of  the  witness  to 
lay  aside  his  scientific  terminology,  and  employ  such  expres- 
sions as  are  comprehended  by  all  common  men ;  and  when 
he  will  not  or  cannot  do  this,  he  should,  if  possible,  be  at 
once  rejected  by  the  advocate  and  another  substituted  in 
his  place.  The  circumstances  of  the  case,  however,  some- 
times permit  of  no  selection,  as  where  physicians  who 
attended  the  deceased,  or  participated  in  an  autopsy,  are 
called  to  testify  to  facts  which  they  observed.  If  none  of 
these  is  capable  of  conveying  his  ideas  in  ordinary  words, 
the  advocate  must  by  his  own  efforts  supply  the  deficiency. 
So  far  as  practicable  he  should  confine  the  witness  to 
explanations  and  assertions  of  a  general  and  substantial 
character.  The  unintelligible  statements  of  the  witness, 
translated  into  familiar  language,  should  be  embodied  in  the 
questions  of  the  advocate  and  categorically  answered,  until, 
by  dint  of  persevering  inquiry,  the  essential  evidence  is 
brought  within  the  comprehension  of  the  jury.  To  under- 
stand the  subject  of  such  evidence,  so  far  at  least  as  it  is 
related  to  the  cause,  is  therefore  incumbent  on  the  advo- 
cate. A  lawyer  who  cannot  stand  between  a  scientific  wit- 
ness and  the  jury,  and  interpret  by  his  questions  the  techni- 
cal expressions  of  the  witness,  is  not  competent  to  conduct 
such  an  examination.  The  study  of  these  subjects  conse- 
quently becomes  part  of  the  necessary  preparation  of  his 
cause,  a  fraction  of  that  training  which  the  advocate  receives 
while  in  the  act  of  disciplining  others,  and  must  be  pursued 
in  books  or  among  experts  until  the  desired  facility  is  gained. 
When  time  and  opportunity  for  this  are  wanting,  he  must  be 
aided  in  the  court-room,  during  the  examination  of  the  wit- 

149 


§   191  FORENSIC   ORATORY. 

ness,  by  competent  assistants  whose  understanding  of  this 
aspect  of  the  case  enables  them  to  suggest  such  inquiries  to 
him  as,  being  answered,  will  secure  the  comprehension  of  the 
evidence. 

§  192.  Intelligible  Evidence:  how  Rendered  Unintelli- 
gible :  the  Rambling  Witness  :  his  Treatment. 
Testimony  in  itself  intelligible  is  often  rendered  difficult  of 
comprehension  by  the  incompleteness,  or  the  want  of  conti- 
nuity, with  which  it  is  presented.  These  evils  are  due  either 
to  the  defective  mental  constitution  of  the  witness,  or  to  his 
moral  weakness,  or  to  his  personal  hostility,  or  to  the  im- 
proper conduct  of  the  advocate.  A  defective  mental  con- 
stitution manifests  itself  in  rambling,  or  in  dull  and  stupid 
witnesses.  In  many  individuals  there  apparently  exists  no 
power  of  fixing  the  attention  on  a  single  object  and  persist- 
ently pursuing  its  consideration,  and  from  such  an  individual 
it  is  useless  to  expect  any  exhaustive  and  coherent  statement 
of  the  facts  within  his  knowledge.  Any  idea  which  suddenly 
arises  in  his  mind,  during  the  course  of  his  narration,  diverts 
his  thought  into  another  channel ;  he  loses  sight  of  many 
details  which  he  should  remember,  and  continues  his  relation 
without  consciousness  of  the  omission.  If  he  endeavors  to 
express  this  new  idea,  his  effort  to  explain  it  leads  him  still 
further  from  his  proper  subject,  and  when  he  returns  to  it,  if 
ever,  it  is  at  a  point  different  from  that  at  which  it  was 
abandoned,  while  the  intermediate  ideas,  however  necessary 
to  the  comprehension  of  the  whole,  are  left  unuttered.  The 
examination  of  a  witness  of  this  defective  mental  character 
should  be  close  and  catechetical.  The  questions  of  the  advo- 
cate should  lead  him  step  by  step  through  the  entire  subject 
of  his  testimony,  in  logical  order  and  without  omissions.  If  he 
persists  in  rambling  and  irrelevant  replies,  he  should  not  be 
rudely  interrupted,  for  any  mental  shock  or  moral  perturba- 
tion will  increase  his  difficulties,  but  when  he  has  finished 
150 


DIRECT   EXAMINATION   OF   WITNESSES.       §   1 93 

what  he  wishes  to  relate,  the  question  from  whose  true  reply 
he  has  departed  should  be  patiently  repeated,  and  the  exam- 
ination pass  from  this  point  to  the  next  only  when  the  proper 
answer  is  obtained. 

§  193.  Intelligible  Evidence:  how  Rendered  Unintelli- 
gible :  the  Dull  and  Stupid  Witness :  his  Treat- 
ment. 

The  same  obstacles  are  encountered  in  eliciting  the  evi- 
dence of  a  dull  and  stupid  witness.  His  perceptions  are 
cloudy  and  indefinite.  His  processes  of  recollection  and 
reflection  are  slow  and  disconnected.  He  does  not  compre- 
hend the  questions  of  the  advocate,  or  the  pertinency  and 
significance  of  his  own  replies.  Impelled  to  answer  by  the 
conviction  that  he  ought  to  know  everything  which  the  inter- 
rogatory assumes  that  he  is  able  to  relate,  he  ventures  a 
response  without  considering  its  relevancy  to  the  question  or 
its  effect  upon  the  cause ;  and  when  requested  to  explain 
the  inconsistencies  or  the  obscurities  of  his  narration,  he 
increases  rather  than  removes  the  difficulty  by  new  and  even 
less  harmonious  assertions.  The  value  of  this  witness  to  the 
cause  depends  almost  entirely  on  his  management  by  the 
examiner.  As  he  is  generally  honest  and  willing  to  impart 
his  information,  it  is  only  necessary  to  make  him  understand 
what  is  desired  of  him.  and  to  afford  him  proper  methods  of 
communicating  his  ideas.  The  questions  of  the  advocate 
must  be  brought  within  his  comprehension.  They  must  be 
short,  direct,  deliberately  uttered,  and  call  for  the  expression 
of  but  a  single  thought.  They  must  be  couched  in  language 
to  which  the  witness  is  accustomed,  following  even  his  mis- 
pronunciations and  erroneous  use  of  words,  in  order  to  suggest 
to  him  the  exact  thought  which  he  is  to  express.  If  one 
question  is  found  insufficient  to  fix  his  attention  on  the  sub- 
ject, another  and  another  must  be  asked,  approaching  it 
from  different  directions  and  pursuing  it  through  different 


§   193  FORENSIC   ORATORY. 

lines  of  associated  ideas.  The  patience  of  the  advocate  in 
this  examination  must  be  inexhaustible.  To  take  the  witness 
again  and  again  over  his  story  in  order  to  recall  to  him  some 
event  or  fact  which  seems  to  elude  every  effort  of  his  mem- 
ory, to  construct  questions  which  contain  some  word  or 
phrase  suggestive  of  the  missing  thought,  to  contrive  meth- 
ods of  explanation  or  illustration  which  enable  him  to  make 
himself  clearly  understood  by  the  jury,  to  afford  him  oppor- 
tunities for  reconciling  inconsistencies  into  which  his  misap- 
prehension of  the  questions  or  the  inaccuracy  of  his  replies 
has  led  him,  taxes  the  ingenuity  and  perseverance  of  the 
most  adroit  and  indefatigible  lawyers.  The  task  imposed 
upon  them  is  nothing  less  than  the  creation  of  the  testimony, 
save  that  the  facts,  as  crude  and  indefinite  ideas,  lie  dormant 
in  the  recollection  of  the  witness.  It  is  the  advocate  who 
gives  to  these  ideas  vitality  and  form,  who  clothes  them  in 
suitable  expressions,  who  arranges,  produces,  and  communi- 
cates them  to  the  jury. 

§  194.    Intelligible   Evidence:    how   Rendered   Unintelli- 
gible:   the  Timid  and  Self-Conscious    Witness: 
his  Treatment. 
The  testimony  of  a  witness  whose  moral  weakness  mani- 
fests itself  in   an  undue  timidity  and    self-consciousness  is 
subject   to   the   same   defects.      His    attention    is   divided 
between  the  ideas  which  he  is  requested  to  present,  and 
the  effect  that  he  supposes  is  to  be  produced  by  their  dis- 
closure on  himself  or  on  the  cause.     His  apprehensions  and 
conjectures  often  work  through  his  imagination  on  his  mem- 
ory, until  without  intending  falsehood  he  omits  or  colors  facts 
to  a  degree  irreconcilable  with  truth.     No  sooner  are  his 
ideas  uttered,  however,  than  he  becomes  conscious  of  their 
error.     If  he  now  attempts  an  explanation,  it  usually  results 
in  his  entire  discomfiture.     If  he  persists  in  the  misrepresen- 
tation or  concealment,  a  new  cause  of  embarrassment  arises 
152 


DIRECT   EXAMINATION   OF   WITNESSES.       §   1 94 

in  the  fear  of  subsequent  exposure,  and  leads  to  still  more 
harmful  falsehoods  and  suppressions.  Thus,  with  the  best 
intentions  at  the  outset,  and  knowing  matters  of  importance 
to  the  cause,  a  nervous,  apprehensive  witness  may  finally 
retire  suspected  of  the  grossest  perjury,  and  without  having 
related  a  single  matter  as  it  actually  occurred.  No  witness 
who  is  liable  to  this  infirmity  should  be  permitted  to  narrate 
material  facts  until  his  embarrassment  and  fear  are  overcome. 
By  simple  questions  in  reference  to  his  occupation,  residence, 
or  relation  to  the  parties  or  the  cause,  eliciting  replies  in 
which  mistake  will  be  impossible,  he  should  be  gradually 
assured  that  he  is  capable  of  understanding,  and  of  properly 
responding  to,  the  inquiries  which  are  to  be  proposed  to 
him,  and  his  entire  attention  fixed  on  the  proceeding  in 
which  he  is  now  engaged.  When  at  last  fully  at  his  ease,  the 
more  material  portions  of  his  evidence  should  be  approached, 
the  questions  made,  if  possible,  even  more  simple  and  direct, 
and  limiting  the  answer  to  the  point  required.  At  the  least 
indication  of  returning  discomposure  the  examination  of 
important  matters  should  be  at  once  suspended,  and  the  wit- 
ness occupied  with  insignificant  ideas  until  his  self-command 
has  been  restored.  The  slightest  manifestation  of  impatience 
or  vexation  toward  such  a  witness  must  be  avoided.  He  does 
not  need  to  be  reminded  of  his  inefficiency.  On  the  contrary, 
his  chief  necessity  is  to  forget  it,  to  concentrate  his  thoughts 
upon  the  facts  to  which  he  testifies,  and  to  speak  as  earnestly 
and  accurately  concerning  them  as  he  would  do  in  any  other 
situation  where  self-consciousness  did  not  embarrass  and  con- 
fuse him.  The  same  witness  who.  if  regarded  by  his  ques- 
tioner with  an  incredulous  stare  and  knitted  brow,  stumbles, 
forgets,  and  contradicts  himself,  will  often,  when  encouraged 
by  an  interested  gaze  and  kindly  smile,  and  guided  by  per- 
spicuous and  respectful  inquiries,  relate  whatever  he  may 
know  with  an  assurance  and  directness  not  less  amazing  to 
the  witness  than  it  is  gratifying  to  the  advocate. 

153 


§   195  FORENSIC   ORATORY. 

§  195.  Intelligible  Evidence :  how  Rendered  Unintelli- 
gible: the  Bold  and  Zealous  Witness:  his  Treat- 
ment. 
The  moral  weakness  of  a  bold  and  zealous  witness  creates 
almost  equal  difficulties.  He  also  is  self-conscious,  but  in 
him  self-consciousness  is  manifested  by  a  high  opinion  of  his 
discernment  of  the  real  requirements  of  the  cause,  and  of  the 
importance  and  conclusiveness  of  his  own  evidence  concern- 
ing it.  He  feels  that,  if  permitted  to  state  fully,  in  his  own 
way,  what  he  thinks  as  well  as  what  he  knows,  the  jury  must 
at  once  decide  in  favor  of  the  party  in  whose  interest  he  is 
called.  He  rebels  at  interference,  even  of  his  own  counsel, 
is  jealous  of  the  questions  in  reply  to  which  his  testimony  is 
delivered,  and  avails  himself  of  every  opportunity  to  assert 
his  own  opinions  and  escape  the  limits  within  which  the 
interrogatories  are  intended  to  confine  him.  He  is  a  dan- 
gerous witness,  rarely  adhering  strictly  to  the  truth,  easily 
led  astray  by  flattery,  and  liable  to  betray  the  cause  when- 
ever he  suspects  that  his  services  are  unappreciated.  This 
witness  requires  the  most  prudent  and  at  the  same  time  the 
most  inflexible  control.  While  he  should  not  be  irritated  by 
sensible  restrictions,  he  must  still  be  kept  within  the  narrowest 
limits,  and  his  evidence  confined  in  matter  and  expression  to 
the  precise  truth  which  it  is  necessary  for  him  to  disclose. 
This  suppression,  though  inevitable,  must  take  upon  itself  the 
appearance  of  encouragement ;  and  the  very  questions  by 
which  the  advocate  endeavors  to  restrain  him  must  seem  to 
him  new  impulses  toward  the  divulgence  of  his  valuable 
knowledge.  The  manner  of  the  advocate  toward  him  should, 
therefore,  be  respectful,  dignified,  and  ceremonious;  the 
questions  should  necessitate  short  and  simple  answers ;  and 
his  replies  be  checked  by  a  new  question  the  instant  that  the 
true  answer  of  the  former  is  complete.  The  entire  examina- 
tion of  this  witness  should  be  conducted  with  a  view  to  the 
dangers  which  will  attend  his  cross-examination.     Exagger- 

154 


DIRECT   EXAMINATION   OF   WITNESSES.       §   196 

ations  in  his  evidence,  which  are  likely  then  to  be  exposed, 
should  be  corrected  as  soon  as  made,  by  questions  bringing 
him  to  some  known  standard  and  furnishing  a  measure  of 
his  actual  meaning.  If 'he  endeavors  to  conceal  unfavorable 
facts  which  are  certain  some  time  to  appear,  such  inquiries 
should  be  propounded  as  will  now  elicit  them  in  the  least 
unfavorable  form.  While  he  is  held  with  curb  and  check  to 
prevent  such  manifestations  of  excessive  zeal  as  will  convince 
the  jury  that  his  interest  is  greater  than  his  love  of  truth,  he 
must  be  also  forced  to  disclose  matters  which,  though  lessen- 
ing the  present  value  of  his  evidence,  would  utterly  destroy 
it  if  revealed  for  the  first  time  upon  his  cross-examination. 

§  196.  Intelligible  Evidence :  how  Rendered  Unintelligi- 
ble: the  Hostile  Witness:  his  Treatment 
Incompleteness  or  obscurity  in  the  testimony  of  a  hostile 
witness  is  caused  by  difficulties  of  an  entirely  different  char- 
acter. The  obstacles  encountered  in  the  examination  of 
the  rambling,  the  self-conscious,  or  the  stupid  witness  arise 
from  intellectual  or  emotional  defects,  and  can  be  overcome 
by  enlightening  the  mind  of  the  witness,  or  by  assisting  him 
to  bring  his  impulses  under  control.  The  obstacle  encoun- 
tered in  an  adverse  witness,  however,  is  an  antagonistic  will. 
He  labors  usually  under  no  mental  or  emotional  embarrass- 
ments. He  knows  clearly  and  precisely  the  facts  which 
ought  to  form  his  evidence.  He  is  able  to  narrate  them 
positively  and  coherently,  if  he  so  chooses.  But,  actuated 
by  interest,  or  partiality,  or  more  secret  impulses,  he  is  de- 
termined to  withhold  the  knowledge  he  possesses,  or,  if 
compelled  to  yield  it,  to  communicate  it  in  language  which 
will  make  it  as  valueless  as  possible.  Where  such  a  witness 
is  the  sole  repository  of  ideas  which  are  essential  to  the 
cause,  the  advocate  has  no  other  course  than  to  produce 
him,  and  render  him  as  useful  as  he  may.  Otherwise,  he 
should  avoid  him  altogether.     For  it  is  seldom  that  the  ben- 

155 


§   196  FORENSIC    ORATORY. 

efit  to  be  derived  from  such  a  witness  is  equal  to  the  injury 
which  his  reluctance  to  assist  and  his  perversion  of  the  facts 
inflict.  When,  however,  it  becomes  necessary  to  improve 
him,  the  advocate  must  first  discover  the  cause  and  character 
of  his  hostility.  If  it  be  partial  only,  manifesting  itself  toward 
a  single  person  or  a  single  feature  of  the  cause,  it  may  be 
possible  during  the  whole  examination  to  ignore  the  objec- 
tionable individuals  or  issues,  and  to  approach  the  witness 
solely  upon  matter  concerning  which  he  will  freely  testify. 
If  his  antagonism  extend  to  the  entire  cause,  or  to  all  the 
parties  by  whom  he  is  called,  there  is  little  hope  of  rendering 
him  useful  unless  he  can  be  either  conciliated,  circumvented, 
or  subdued.  In  order  to  conciliate  him,  the  weak  points  in 
his  disposition  must  be  ascertained,  and  siege  laid  to  his 
heart  by  questions  which  appeal  directly  to  these  vulner- 
able characteristics.  Once  in  a  good  humor  with  himself 
and  with  the  advocate,  his  motive  for  concealment  or  perver- 
sion of  the  truth  exercises  less  influence  upon  his  mind,  and 
he  replies  with  little  hesitation  to  cautious  inquiries  which  do 
not  directly  touch  his  prejudices," or  present  anew  to  him  the 
exciting  cause  of  his  antagonism.  Upon  the  failure  of  this 
method  of  attack,  the  advocate  should  have  recourse  to  the 
second,  and  attempt  to  circumvent  him.  Remembering 
that  every  fact  is  so  associated  with  other  facts  that  its 
existence  necessitates  or  inevitably  follows  theirs,  he  begins 
with  questions  concerning  matters  not  apparently  connected 
with  the  fact  desired,  yet  so  related  to  it  that  one  presup- 
poses the  occurrence  of  the  other,  and  gradually  approaches 
it,  pausing,  however,  before  the  witness  sees  the  drift  of  the 
examination  and  is  put  upon  his  guard.  Then  he  inaugurates 
another  line  of  inquiry,  leading  from  a  different  point  but  in 
the  same  direction,  and  then  another  and  another,  until  he 
has  established  around  the  central  fact  a  chain  of  assertions 
and  admissions  which  lead  to  it  so  irresistibly  that  the  wit- 
ness must  concede  it  or  repudiate  his  former  statements.  If 
156 


DIRECT   EXAMINATION   OF  WITNESSES.       §   1 97 

the  acumen  of  the  witness,  or  the  paucity  of  associated  facts, 
render  this  method  of  attack  impossible,  the  sole  remaining 
hope  is  in  his  subjugation.  Now  he  is  to  be  treated  as  an 
open  enemy.  As  soon  as  possible  the  advocate  provokes 
some  manifestation  of  his  hostility  in  order  to  obtain  the 
right  to  cross-examine  him,  and  then  with  vigor  and  severity 
rains  down  upon  him  an  incessant  fire  of  rapid  and  incisive 
leading  questions,  until  he  either  answers,  or  by  his  refusal  to 
reply  impresses  on  the  jury  the  conviction  that  the  statement 
he  withholds  is  true. 

§197.  Intelligible  Evidence:  how  Rendered  Unintel- 
ligible :  Ignorance  of  the  Advocate  Concerning 
the  Cause. 

Those  difficulties  in  rendering  testimony  perfect  and  intel- 
ligible which  arise  from  these  defects  in  the  character  and 
dispositions  of  the  witnesses  are  perhaps  never  wholly  over- 
come. Even  the  most  skilful  advocates  are  often  compelled 
to  admit  their  defeat,  and  the  direct  examination  of  the  wit- 
nesses has  thus  come  to  be  regarded  as  the  highest  test  of 
professional  ability.  But  the  difficulties  which  the  advocate 
himself  creates  are,  on  the  other  hand,  avoidable.  They 
result  either  from  his  failure  to  prepare  his  case,  or  from  his 
thoughtless  and  impetuous  behavior,  or  from  his  ignorance 
or  disregard  of  common  rules  of  oratory.  It  cannot  be 
expected  that,  while  the  facts  pertaining  to  his  cause  are 
still  unknown  to  him,  an  advocate  can  conduct  a  witness 
to  their  full  and  logical  relation.  Rather  his  interference 
tends  to  worse  confusion.  It  puzzles  and  distracts  the  wit- 
ness, excites  his  apprehensions  of  mistake  or  falsehood, 
renders  his  memory  more  treacherous  and  his  judgment  less 
profound.  When  this  emergency  arises,  as  it  sometimes 
may  where  the  sudden  substitution  of  one  counsel  for  an- 
other becomes  necessary,  the  wisdom  of  the  advocate  is  best 
evinced  by  silence.     Until  familiar  with  the  facts,  the  aid  he 

157 


§   197  FORENSIC   ORATORY. 

can  afford  the  witnesses  is  very  slight,  and  he  should  suffer 
them  to  state,  uninterrupted,  what  they  have  to  say,  supply- 
ing known  omissions  and  correcting  known  mistakes  after  the 
voluntary  narrative  has  ceased. 

§  198.  Intelligible  Evidence :  how  Rendered  Unintelli- 
gible: Thoughtlessness  and  Impetuosity  of  the 
Advocate. 
The  thoughtless  and  impetuous  advocate  defeats  the  pur- 
poses of  evidence  in  an  equally  effectual  manner.  He  is 
convinced  that  nothing  can  be  well  done  unless  he  does  it, 
that  no  witness  can  relate  a  fact  unless  aided  by  his  inquiries, 
and  that  no  story  can  be  completed  unless  he  secures  the 
insertion  of  each  minute  particular  in  its  proper  place,  when- 
ever that  place  in  the  narration  is  attained.  He  constantly 
interrupts  the  witnesses  to  emphasize  some  special  point,  or 
to  call  attention  to  some  fact  which  he  assumes  the  witness 
has  forgotten.  He  asks  misleading  questions  by  which  the 
witness  is  perplexed,  and  when  the  answer  is  not  prompt  and 
pertinent  rebukes  him  in  a  manner  that  puts  to  flight  all  his 
remaining  recollections.  If  an  answer  is  of  doubtful  import, 
instead  of  making  a  different  inquiry  which  may  produce  a 
more  complete  reply,  he  repeats  the  doubtful  answer  to 
the  witness  and  demands  an  explanation,  —  a  demand  with 
which  the  witness,  having  forgotten  what  he  did  say  or  hav- 
ing spoken  without  full  consideration  of  his  words,  is  naturally 
unable  to  comply.  He  cross-examines  his  own  witnesses 
as  if  he  doubted  their  integrity  or  the  exact  truthfulness  of 
their  perceptions,  not  seldom  leading  them  to  qualify  their 
former  statements  and  neutralize  the  force  of  their  assertions. 
The  testimony  of  the  best  of  witnesses  cannot  survive  such 
maltreatment  as  this.  If  they  do  not  resent  the  imputa- 
tion of  weakness  or  dishonesty  which  this  meddlesome 
examiner  thus  casts  upon  them,  they  soon  become  confused 
beyond  all  hope  of  restoration,  or  so  disgusted  with  his 
l58 


DIRECT   EXAMINATION    OF  WITNESSES.       §   199 

methods  as  to  lose  interest  in  the  cause  and  leave  it  to 
destruction  in  his  hands.  The  advocate  who  does  not 
command  himself  cannot  command  his  witnesses,  and  has 
no  right  to  expect  from  them  that  effective  testimony 
which  under  better  guidance  they  would  certainly  be  able 
to  disclose. 

§  199.  Intelligible  Evidence  :  how  Rendered  Unintel- 
ligible :  Failure  of  the  Advocate  to  Observe 
Oratorical  Methods  in  Presenting  Evidence. 
The  advocate,  who  disregards  or  is  unacquainted  with  the 
oratorical  rules  which  govern  the  production  of  evidence,  is 
certain  to  present  his  testimony  in  a  most  imperfect  manner. 
The  comprehensibility  of  evidence  depends  not  only  on  the 
ability  and  willingness  of  witnesses  to  communicate  the  ideas 
which  they  possess,  but  on  the  order  and  connection  in 
which  those  ideas  may  be  introduced.  Although  every  law- 
yer knows  that  facts  must  be  presented  in  a  certain  sequence 
if  they  are  to  be  fully  and  immediately  understood,  yet  in 
practice  few  matters  are  left  so  largely  to  the  control  of 
accident  and  chance  as  this.  Witnesses  are  produced  as 
their  convenience  or  the  whim  of  counsel  or  of  client  may 
direct,  and  when  produced  they  are  examined  without  refer- 
ence to  the  association  of  events,  but  as  the  unpremeditated 
fancies  of  the  advocate  suggest.  This  practice  is,  how- 
ever, contrary  to  the  idea  which  underlies,  and  to  the  pur- 
pose which  should  animate,  the  exhibition  of  the  evidence 
in  court.  Witnesses  should  be  called  in  such  an  order  as 
the  interests  of  the  cause  require.  Their  testimony  should 
be  given  in  such  a  manner  as  to  exhibit  in  the  clearest  light 
the  facts  on  which  the  cause  itself  is  based,  and  no  common 
exigency  should  be  permitted  by  the  advocate  to  deprive 
him  of  the  advantage  of  introducing  evidence  in  the  most 
favorable  and  convincing  method.  For  mismanagement  in 
this  respect  there  can  be  no  apology.     If  it  results  from  the 

159 


§    199  FORENSIC    ORATORY. 

inherent  and  unalterable  mental  constitution  of  the  advocate, 
he  has  mistaken  his  vocation,  and  in  justice  to  his  clients  he 
should  leave  this  field  of  professional  effort  to  men  better 
fitted  for  their  duties.  If  it  is  due  to  want  of  proper  educa- 
tion, or  to  contempt  for  those  established  rules  which  govern 
the  production  of  the  evidence  in  court,  the  method  of  avoid- 
ing such  misconduct  in  the  future  is  apparent,  though  the 
past  may  be  forever  unatoned.  But  if,  as  is  often  the  case 
with  the  well  trained  advocate,  it  arises  from  the  unwarranted 
assumption  that  facts  clear  and  simple  to  himself  will  appear 
equally  so  to  every  other  person,  in  whatever  manner  they  may 
be  presented,  it  betrays  a  carelessness  and  want  of  foresight 
of  which  no  lawyer  can  afford  to  be  found  guilty.  The  com- 
plaint, now  so  prevalent  and  apparently  so  well  deserved,  that 
juries  often  fail  to  grasp  the  merits  of  a  case,  surprises  no 
one  who  has  been  accustomed  to  study  court  proceedings 
except  as  to  the  persons  to  whom  the  fault  is  usually 
imputed. 

§  200.  Intelligible  Evidence  :  to  be  Presented  in  Chrono- 
logical Order. 
Facts  make  their  strongest  impression  upon  the  mind 
when  narrated  in  their  chronological  order.  The  most 
natural  and  most  pleasing  review  of  past  events  is  that 
which  moves  forward  from  the  cause  to  the  effect,  from 
the  acts  and  conditions  of  one  period  to  the  acts  and  con- 
ditions immediately  succeeding.  Whether  in  history,  or 
science,  or  philosophy,  whether  in  the  fables  which  amuse 
the  infant  or  the  theories  which  puzzle  and  delight  the 
sage,  the  spontaneous  course  of  man  is  from  the  beginning 
toward  the  end,  as  though  this  were  the  only  method  in 
which  the  subject  could  be  fully  understood,  and  the 
knowledge  gained  by  studying  it  truly  and  permanently 
appropriated.  This  law  of  nature  would  itself  suggest  to 
the  advocate  the  proper  mode  of  presenting  facts  to  the 
160 


DIRECT   EXAMINATION    OF   WITNESSES.        §  201 

consideration  of  his  hearers,  and  the  slightest  realization  of 
the  attitude  of  a  jury  toward  the  fact  at  issue  strongly  sup- 
ports and  emphasizes  it.  There  is  no  audience  to  whom  a 
simple,  natural,  chronological  order  of  narration  is  more 
necessary.  They  are  wholly  ignorant  of  the  facts  in  issue, 
and  anxiously  wait  for  their  disclosure.  They  derive  all 
their  knowledge  from  the  oral  statements  of  the  witnesses, 
and  rely  solely  on  their  memories  to  retain  the  matters  on 
which,  by  and  by,  they  are  to  base  their  judgment.  They 
have  no  method  of  refreshing  their  recollections,  or  oppor- 
tunity to  revise,  collect,  and  compare  facts  with  one  another. 
Surely  there  can  be  no  greater  folly  than  to  offer  to  such  a 
body  of  men  a  disconnected  and  chaotic  aggregation  of 
events,  and  expect  them  to  so  arrange  and  classify  them  that 
from  them  they  can  draw  reliable  conclusions. 

§  201.  Convincing  and  Persuasive  Evidence  :  Attention 
and  Interest  to  be  Aroused  by  the  Opening 
Evidence. 
Second  only  to  the  necessity  of  adapting  the  evidence  to 
the  comprehension  of  the  jury,  is  that  of  offering  the  evi- 
dence in  such  a  manner  that  it  will  move  their  minds  and 
dispositions  unceasingly  toward  the  judgment  which  the  ad- 
vocate desires.  In  accomplishing  this  purpose,  it  should 
be  his  first  endeavor  to  secure  attention  and  excite  good 
will  toward  his  client  and  his  cause,  either  by  the  charac- 
ter of  the  opening  evidence  itself,  or  by  the  witness  through 
whom  such  evidence  is  given.  When  the  client  is  a  prepos- 
sessing personage,  it  is  wise  to  make  him  the  first  witness, 
even  although  his  testimony  may  be  brief  and  unimportant. 
The  jury  thus  make  his  acquaintance  at  the  outset,  their 
sympathies  are  naturally  enlisted  for  him,  their  curiosity  as 
to  the  cause  becomes  a  living  interest  in  the  client,  and  they 
are  predisposed  to  listen  to  whatever  may  support  or  illus- 
trate his  claims.     When  the  client  is  unable  thus  to  serve 

"  161 


§  201  FORENSIC   ORATORY. 

his  cause,  his  evidence  may  still  be  of  sufficient  moment  to 
arouse  their  attention  and  insure  their  favor ;  but  if  it  is  not, 
the  advocate  should  commence  his  testimony  with  some  other 
witness  whose  personal  appearance,  or  whose  narrative  of 
facts,  will  win  the  favor  which  he  here  requires. 

§  202.  Convincing  and  Fersuasive  Evidence  :  Importance 
of  Opening  Evidence. 
The  importance  of  this  first  impression  on  the  jury  cannot 
be  overestimated.  Whether  it  be  favorable  or  unfavorable  it 
is  never  totally  effaced,  whatever  evidence  may  afterwards  be 
introduced.  Unconsciously  to  themselves  the  individual  jury- 
men espouse  at  once  one  side  or  the  other  of  the  cause,  and 
all  their  subsequent  impressions  are  colored  by  the  preju- 
dices which  are  then  engendered.  The  advocate  who  calls 
at  this  point  a  bungling  or  suspicious  witness,  or  offers  evi- 
dence commended  neither  by  the  person  who  delivers  it 
nor  by  its  own  intrinsic  worth,  excites  a  hostility  toward  his 
cause  against  which  he  must  struggle  during  all  his  future 
labors.  And  inasmuch  as  cases  never  occur  in  which  no 
prepossessing  witness  to  any  admissible  fact  can  be  procured, 
it  is  the  folly  or  the  ignorance  of  the  advocate  alone,  if  by 
his  neglect  to  open  with  such  a  witness  this  difficulty  is 
created. 

§  203.     Convincing   and    Persuasive  Evidence :    Evidence 
Covering  the  Entire  Case  next  to  be  Presented. 
To  place  the  jury  in  immediate  possession  of  all  the  essen- 
tial facts  on  which  his  cause  is  based,  should  be  the  next 
endeavor  of  the  advocate.     If  his  first  effort  was  successful, 
the  jury  are  now  impatient  to  arrive  at  a  full  understanding 
of  the  case.    Their  interest  is  excited,  their  sympathy  is  keen, 
and  they  are  solicitous  to  know  whether  the  facts  will  warrant 
the  impressions  which  they  have  received.     To  take  advan- 
tage of  this  favorable  temper,  before   its  fresh  exuberance 
162 


DIRECT   EXAMINATION   OF   WITNESSES.       §  204 

expires,  the  advocate  must  hasten  to  spread  these  facts 
before  them  through  the  evidence.  The  witness  who  can 
do  this  most  completely  and  effectively  should,  therefore, 
next  be  introduced,  and,  if  his  narrative  does  not  cover  the 
entire  transaction,  others  should  be  examined  in  regard  to 
what  remains.  This  rule  is  as  imperative  in  cases  where  an 
opening  statement  has  been  made,  as  in  those  in  which  it  is 
omitted.  No  jury  can  receive  that  statement  as  conclusive 
evidence  of  the  matters  it  recites,  nor  is  its  effect  upon  their 
memory  or  their  understanding,  however  powerful,  to  be  com- 
pared with  that  of  the  sworn  testimony  of  respectable  and 
intelligent  witnesses.  Unless  speedily  corroborated  by  such 
testimony  it  is  generally  either  doubted  or  forgotten,  and  it 
is  best  confirmed  by  evidence  in  which  the  facts  appear  in 
the  same  order  in  which  they  were  stated.  The  first  sub- 
stantial witnesses  offered  should  thus  repeat  and  maintain  the 
propositions  of  the  advocate,  and  fix  them  in  the  minds  and 
recollections  of  the  jury  beyond  the  danger  of  obliteration. 

§  204.  Convincing  and  Persuasive  Evidence  :  Most  Ef- 
fective Order  of  Presenting  Evidence. 
Where  there  are  many  witnesses,  of  whom  some  are 
acquainted  with  the  whole  transaction  while  others  know 
but  one  or  two  of  the  included  facts,  the  same  method 
should  be  substantially  pursued.  The  witnesses  who  are  to 
testify  to  all  the  facts  should  be  divided.  So  many  being 
called  as  may  be  requisite  to  put  the  case  as  a  whole  before 
the  jury,  the  witnesses  to  separate  details  should  be  intro- 
duced, and  the  testimony  close  with  the  remaining  witnesses, 
whose  statement  covers  the  entire  ground  once  more.  In 
this  manner  the  completeness  and  harmony  of  the  narrative 
is  preserved,  unaffected  by  the  intermediate  evidence  which, 
if  given  first,  would  not  be  understood ;  if  last,  would  have 
disturbed  the  sharpness  of  the  impressions  left  upon  the 
mind  of  the  jury  as  to  the  transaction  as  a  whole ;  and,  if 

163 


§  204  FORENSIC    ORATORY. 

scattered  through  the  other  evidence,  would  have  wearied 
and  distracted  the  attention  of  the  jury,  and  perhaps  have 
rendered  the  entire  testimony  pointless  and  confused.  When 
several  series  of  facts  converge  toward  one  central  event  in 
the  cause  such  as  the  separate  preparations  of  co-conspira- 
tors for  the  commission  of  a  crime,  each  series  should  be 
treated  as  a  distinct  transaction;  and  when  the  evidence 
concerning  it  has  been  commenced,  it  should  be  completed 
before  proceeding  to  another.  If  various  series  of  facts 
diverge  from  one  event,  the  same  mode  of  dealing  with  the 
evidence  concerning  each  should  be  observed.  This  matter 
presents  no  difficulty  when  the  rules  of  practice  permit  a 
witness  to  be  examined  as  to  one  part  of  the  cause,  and 
afterward  recalled  as  to  another.  But  when  the  rules  require 
the  knowledge  of  a  witness  to  be  exhausted  in  one  continu- 
ous examination,  the  necessary  clearness  and  distinctness  of 
the  evidence  cannot  be  easily  attained.  The  most  effective 
method  is  to  call,  next  after  the  witnesses  who  are  examined 
for  the  purpose  of  presenting  the  whole  case  to  the  jury,  the 
witnesses  whose  evidence  will  be  confined  to  the  particular 
lines  of  fact,  preserving  them  in  distinct  classes  ;  and  when 
these  are  finished,  to  proceed  with  those  whose  testimony 
will  include  not  only  the  preparatory  series  of  facts,  but  the 
great  facts  in  which  they  finally  converge. 

§  205.    Convincing  and  Persuasive  Evidence :    Effective- 
ness ho^w  far  Dependent  on  the  Qualities  of  the 
Witnesses. 
The  persuasiveness  as  well  as  the  convincing  and  explica- 
tory  power  of  evidence,   depends  upon  the  qualities,  the 
-number,  and  the  order  of  succession  of  the  witnesses.     A 
good  witness  —  one  whose  statements  are  definite  and  posi- 
tive, whose  mind  is  clear,  and  whose  manner  is  agreeable  — 
does  more  than  to  excite  belief;  he  stimulates  affections  and 
awakens  purposes.     The  listening  jury  are  not  merely  satis- 
164 


DIRECT   EXAMINATION   OF   WITNESSES.       §  206 

fied  that  what  he  says  is  true ;  they  are  impelled  to  act  on 
their  convictions,  and  to  carry  truth  to  its  legitimate  result. 
The  witness  need  display  no  special  interest  in  the  cause, 
need  use  no  language  to  excite  emotion,  nor  introduce  into 
his  narrative  pathetic  coloring ;  the  simple  power  of  truth, 
firmly,  clearly,  and  agreeably  presented,  is  sufficient  to 
awaken  the  impulse  of  the  human  heart  and  move  the 
human  will.  There  are  few  advocates  who  have  grown  gray 
in  service  at  the  bar  that  have  not  realized  this  power ;  and, 
listening  to  the  story  of  such  witnesses  upon  the  other  side, 
have  not  felt  the  foundations  of  their  own  cause  crumbling 
underneath  their  feet,  and,  ^partisans  as  they  were,  become 
convinced  and  persuaded,  for  the  time,  that  they  and  their 
clients  were  alike  in  error. 

§  206.  Convincing  and  Persuasive  Evidence  :  Effective- 
ness Impaired  by  Poor  Witness. 
To  the  employment  of  such  witnesses  as  these  the  advo- 
cate should,  as  far  as  possible,  confine  himself.  The  mere 
fact  that  a  single  individual  only  is  possessed  of  knowledge 
which  is  serviceable  to  the  cause  may  justify  his  presentation 
to  the  jury,  although  his  manner  and  appearance  are  unfa- 
vorable ;  but  there  is  no  excuse  for  counteracting  the  effect 
produced  through  prompt  and  pleasing  testimony  by  calling 
weak  and  disagreeable  witnesses  to  the  same  point.  No 
number  of  such  witnesses  can  add  to  the  impression  which  a 
positive  and  prepossessing  witness  has  created.  The  danger 
is,  that,  in  the  multitude  of  unpleasant  emotions  excited  by 
the  former,  the  influence  exerted  by  the  latter  may  be  dis- 
sipated, and  the  entire  value  of  the  evidence  may  be  de- 
stroyed. In  almost  every  instance,  therefore,  it  is  wiser  to 
rest  a  fact  upon  the  statement  of  one  clear  and  agreeable 
witness,  than  to  endeavor  to  corroborate  his  evidence  by  that 
of  witnesses  who  make  a  poor  impression. 

I65 


§  207  FORENSIC   ORATORY. 

§  207.  Convincing  and  Persuasive  Evidence :  Effective- 
ness Increased  by  Multiplying  Good  Witnesses. 
On  the  other  hand,  where  good  witnesses  are  numerous 
the  advocate  should  not  restrict  himself  to  one,  even  al- 
though the  point  to  which  they  testify  cannot  be  contro- 
verted. The  impression  made  upon  the  jury  by  the  succes- 
sive appearance  of  respectable  and  intelligent  persons  in 
support  of  a  cause  is  very  strong,  whatever  be  the  compara- 
tive importance  of  their  testimony.  The  distinction  never  is 
so  clearly  drawn  between  a  party  and  his  witnesses  that  the 
jury  do  not,  in  some  degree,  regard  them  as  jointly  inter- 
ested in  the  controversy  j  and  clients  often  find  this  feeling 
resulting  in  their  gain  or  in  their  loss.  The  character  of  an 
accused  person  is  by  law  presumed  to  be  good,  and  courts 
uniformly  so  instruct  a  jury;  but  no  prisoner  at  the  bar 
would  fail  to  summon  in  support  of  this  presumption,  when 
it  were  possible,  the  honorable  and  influential  men  of  his 
community,  not  to  make  certain  what  the  law  presumes,  but 
for  the  moral  force  which  the  mere  presence  of  such  men  on 
his  behalf  will  exercise  upon  the  jury.  But  when  the  evi- 
dence of  such  witnesses  is  in  itself  important,  the  reason  for 
employing  numbers  becomes  far  more  powerful.  The  minds 
and  memories  of  no  two  witnesses  are  so  precisely  equivalent 
to  one  another,  that  each  will  narrate  the  same  facts  in  the 
same  manner  and  with  the  same  expressions.  The  inevitable 
variety  which  will  thus  manifest  itself  in  their  evidence  can  be 
made  of  great  service  to  the  advocate.  By  means  of  it  he 
can  again  and  again  repeat  and  deepen  the  impression  made 
by  the  first  witness,  yet  without  wearying  the  attention  of  the 
jury.  He  can  with  more  certainty  reach  the  convictions  and 
the  impulses  of  all,  differing  as  they  do  among  themselves  in 
their  impressibility,  than  if  depending  on  the  evidence  of  a 
single  individual.  The  same  advantage  which  the  orator 
obtains,  by  the  employment  of  poetic  images  and  verbal 
figures  to  give  variety  and  intensity  to  his  ideas,  is  gained 
1 66  I 


DIRECT   EXAMINATION   OF  WITNESSES.     §  208 

by  placing  facts  before  the  jury  through  the  evidence  of 
many  witnesses.  Of  course,  to  such  a  practice  there  is  a 
limit  which  the  good  sense  of  the  advocate  must  not  permit 
him  to  transcend.  The  endurance  of  a  jury  is  not  infinite, 
even  where  they  are  excellently  entertained,  and  when  the 
advocate  has  examined  witnesses  enough  to  present  his  case 
in  every  aspect  fully  and  conclusively,  he  should  forbear,  lest 
the  patience  of  his  hearers  be  exhausted  and  the  evidence 
itself  outlive  its  force. 

§  208.    Convincing  and  Persuasive   Evidence  :  Poor  Wit- 
nesses, when  Necessary,  how  Introduced. 

If  it  becomes  essential  to  introduce  the  testimony  of  unde- 
sirable witnesses,  the  time  and  order  in  which  they  should 
be  presented  must  be  determined  by  the  same  considera- 
tions. No  witness  of  this  character  should  be  employed, 
either  at  the  opening  of  the  evidence  or  at  its  close.  The 
impressions  of  the  cause  derived  from  the  first  witness  are 
most  powerful  and  permanent ;  those  which  are  left  behind 
him  by  the  concluding  witness  are  scarcely  less  so.  When 
these  extremes  are  strong  and  convincing,  the  intermediate 
testimony  is  of  less  importance.  Its  weakness  is  lost  sight  of 
in  the  general  and  broader  view  which,  resting  on  the  entire 
evidence,  inevitably  sees  most  clearly  its  beginning  and  its 
end.  Poor  witnesses,  where  indispensable,  should  therefore 
be  dispersed  among  the  good,  in  such  a  manner  that  their 
weaknesses  may  be  concealed  and  overshadowed  by  the 
courage  and  energy  of  others  who  immediately  succeed 
them.  Effective  witnesses  can  be  produced  at  the  com- 
mencement and  the  termination,  and  at  frequent  intervals 
during  the  course  of  the  evidence,  even  although  their  state- 
ments may  be  unimportant,  and  thus  give  character  and 
power  to  the  whole  testimony,  as  well  as  proof  of  facts  to 
which  they  have  been  called.  By  this  expedient  the  entire 
body  of  witnesses,  though  many  of  them  may  be  so  poor  as 

167 


§  208  FORENSIC   ORATORY. 

to  be  almost  useless,  may  be  made  to  appear  strong  and  valu- 
able, as  in  a  solid  phalanx  the  frail  and  cowardly  are  borne 
onward  by  the  vigorous  and  brave. 

§  209.  Convincing  and  Persuasive  Evidence :  Effective- 
ness Increased  or  Diminished  by  the  Demeanor 
of  the  Advocate  toward  his  Witnesses. 
The  appearance  presented  by  a  witness  while  before  the 
court,  and  the  opinion  which  the  jury  form  concerning  him, 
are  governed  in  a  great  degree  by  the  method  of  his  treat- 
ment by  the  advocate.  The  value  of  the  testimony  of  the 
best  and  strongest  witnesses  can  be  destroyed  by  the  folly 
and  the  blindness  of  the  counsel  who  examines  them ;  the 
credibility  and  influence  of  the  weakest  and  the  most  repul- 
sive may  be  impregnably  established  under  his  prudent  and 
vigilant  control.  The  permanent  impression  made  upon  a 
jury  by  the  evidence  of  any  witness  is  the  sum  of  the  impres- 
sions they  receive  from  his  conduct  and  the  conduct  of  his 
questioner;  and  their  judgment  as  to  his  intelligence  and 
honesty  is  formed,  in  a  much  larger  measure  than  any  one 
imagines,  upon  the  apparent  confidence  and  respect  with 
which  he  is  regarded  by  the  advocate.  It  is  alike  the  duty 
and  the  interest  of  the  advocate  to  take  advantage  of  this 
inestimable  opportunity  to  intensify  the  influence  which  his 
good  witnesses  exert  upon  the  jury,  and  to  support  and  for- 
tify the  doubtful  and  the  weak. 

§  210     Convincing  and  Persuasive  Evidence :    Demeanor 
of  the  Advocate  toward  a  Good  Witness. 
Confidence  in  a  strong  and  well  trained  witness  is  best 
manifested  by  letting  him  alone.     After  the  necessary  ques- 
tions by  which  he  is  introduced,  and  brought  down  to  the 
point  where  his  real  evidence  begins,  he  should  be  suffered 
to  relate  it  in  his  own  way,  free  from  interruption  and  from 
interrogatories,  until  his  story  is  at  an  end.      Any  omissions 
1 68 


DIRECT   EXAMINATION   OF   WITNESSES.      §  211 

of  which  he  may  have  been  guilty  can  then  be  called  to  his 
attention  and  supplied,  and  any  proper  explanations  of  his 
statements  may  be  required.  A  narrative  like  this  makes 
the  clearest  and  most  powerful  impression  which  evidence 
can  produce  upon  a  jury.  Questions  and  interruptions,  so 
far  from  aiding,  only  confuse  and  weaken  it.  It  should  be 
left  to  bear  its  own  fruit,  untouched  by  either  grafting  axe  or 
pruning  knife. 

§  211.  Convincing  and  Persuasive  Evidence :  Demeanor  of 
the  Advocate  toward  a  Poor  Witness. 
Over  the  witnesses  of  every  other  class  the  advocate  must 
exercise  a  firm  and  continuous  control.  Whether  their  weak- 
ness manifests  itself  in  boldness  or  timidity,  in  irascibility, 
untruthfulness,  or  in  any  other  manner,  the  details  of  their 
evidence  should  be  presented  to  the  jury  with  the  utmost 
caution,  and  in  the  form  of  answers  to  such  questions  as  give 
the  least  possible  opportunity  for  injurious  replies.  At  the 
same  time,  savfe  in  the  case  of  adverse  witnesses,  the  utmost 
confidence  in  and  respect  for  his  witness  must  be  manifested 
by  the  advocate.  Not  even  the  slightest  trace  of  distrust  or 
disappointment  in  him  should  be  suffered  to  appear,  and 
though  he  makes  a  statement  in  contradiction  of  the  claims 
in  whose  support  he  has  been  called,  the  advocate  should 
express  in  his  entire  conduct  no  doubt  of  his  integrity  or 
knowledge.  Damaging  as  such  a  statement  may  be,  it  will 
be  made  still  more  so  if  the  jury  perceive  either  that  the 
advocate  realizes  that  he  has  been  hardly  hit,  or  if  his  man- 
ner toward  the  witness  suggests  to  them  that  he  has  called  a 
witness  whose  honesty  and  truthfulness  he  is  now  ready  to 
impugn.  If  such  a  statement  cannot  be  explained  or  modi- 
fied by  further  questioning  of  the  witness,  the  advocate  has 
no  other  course  but  to  pass  it  by  unnoticed,  and  trust  to 
the  effect  of  other  evidence  to  counteract  or  to  conceal  it. 
Whatever  in  the  manner  or  appearance  of  the  witness  may 

169 


§  211  FORENSIC   ORATORY. 

unfavorably  impress  the  jury,  the  manner  of  the  advocate 
should  also  be  directed  to  antidote  or  cure.  His  language 
and  his  conduct  should  suggest  to  them  his  own  belief  that 
all  faults  in  the  witness  are  due  to  the  embarrassments  of  his 
position,  or  to  the  misfortunes  which  surround  his  life.  He 
should  endeavor  to  enlist  their  sympathies  for  him  in  cases 
where  they  cannot  but  perceive  his  ignorance  and  moral 
degradation,  and  to  impart  to  them  his  own  conviction, 
that,  in  spite  of  all  appearance  to  the  contrary,  the  witness 
really  intends  to  tell  the  truth,  and  knows  the  facts  in  whose 
expression  he  encounters  so  much  difficulty.  The  opinion 
of  the  jury  in  regard  to  all  such  witnesses  is  what  the  advocate 
causes  it  to  be.  They  take  their  cue  from  him,  and,  if  they 
see  him  manifesting  kindness  and  respect,  they  will  expe- 
rience the  same  emotions,  and  receive  with  confidence  the 
evidence  of  one  whom,  if  the  advocate  inspired  them  with 
a  different  feeling,  they  would  unhesitatingly  reject. 

§  212.     Convincing  and  Persuasive  Evidence :     Effective- 
ness Aided  or  Impaired  by  the  Demeanor  of  the 
Judge  toward  the  Advocate. 
Closely  connected  with  the  impression  made  upon  the 
jury  by  the  witnesses  is  the   impression  they  receive  from 
the  conduct  of  the  advocate  and  the  relations  which  subsist 
between  him  and  the  court.      A  jury  naturally  regard  the 
judge  as  their  guide  and  teacher.      Assured  of  his  superior 
experience  and  wisdom,  and  recognizing  him  as  set  above 
them  by  the  law  to  direct  and  govern  their  investigations, 
they  look  to  him  in  every  difficulty,  and  strive  to  follow  what 
appears  to  be  his  judgment.     With  very  few  exceptions,  the 
verdict  of  a  jury  corresponds  with  the  ideas  which  they  have 
formed  concerning  the  opinion  of  the  court,  and  these  ideas 
they  gather  not  merely  from  the  charge,  but  from  the  de- 
meanor of  the  judge  toward  the  counsel  and  the  witnesses 
during  the  entire  trial  of  the  cause.     It  becomes,  therefore, 
170 


DIRECT   EXAMINATION   OF   WITNESSES.      §  21 3 

the  duty  of  the  advocate  to  impress  the  jury,  from  the  outset, 
that  the  court  is  on  his  side,  not  by  any  rash  and  impudent 
assertions,  but  by  comporting  himself  on  all  occasions  in  such 
a  manner  as  to  receive  the  favorable  notice  of  the  court,  and 
be  supported  by  it  in  all  his  interlocutory  contests.  Every 
request  or  motion  that  the  court  allows,  every  decision  in  his 
favor  on  an  objection  to  the  evidence,  every  suggestion  which 
the  court  adopts,  whether  or  not  itself  of  any  consequence, 
conveys  to  them  an  idea  that  the  judge  regards  him  as  enti- 
tled to  succeed,  and  consequently  that  his  cause  itself  is  just. 
There  is  no  surer  way  to  alienate  a  jury  than  to  indulge  in 
controversy  with  the  court.  On  some  great  issue,  involving 
fundamental  human  rights,  it  may  be  safe  as  well  as  necessary 
to  treat  as  an  antagonist  a  despotic  and  oppressive  judge ; 
but  in  all  other  cases  the  jury  instinctively  side  with  the 
court,  and  if  the  counsel  be  defeated,  as  when  the  court  in- 
sists is  sure  to  happen,  it  will  impress  them  as  the  overthrow 
of  some  essential  position  of  his  cause,  and  shake  their  confi- 
dence in  its  righteousness  and  truth.  To  win  the  judge  is 
generally  to  win  the  case.  The  advocate  cannot  expect  to 
do  the  former,  unless  both  facts  and  law  are  in  his  favor,  but 
if  he  can  appear  to  carry  with  him,  during  all  the  proceed- 
ings prior  to  the  charge,  the  sympathies  and  approval  of  the 
court,  he  need  rarely  apprehend  that  the  final  instructions 
to  them  in  the  law  will  countervail  the  good  effect  which  has 
resulted  from  hours,  and  perhaps  days,  of  constant  favor  and 
support. 

§  213.  Convincing  and  Persuasive  Evidence :  Effect- 
iveness Aided  or  Impaired  by  the  General 
Demeanor  of  the  Advocate. 

The  advocate  who  would  enlist  the  sympathies  of  the  jury 
for  himself,  and  through  him  for  his  cause,  must  appear 
worthy  of  their  confidence  and  respect.  They  have  assem- 
bled to  perform  a  solemn  duty,  —  no  less  than  to  express 

171 


§  213  FORENSIC   ORATORY. 

the  judgment  of  the  law,  the  highest  human  judgment, 
upon  the  rights  and  duties  of  the  parties  to  the  cause. 
They  have  not  come  together  to  participate  in  an  athletic 
contest,  nor  to  be  entertained  with  gladiatorial  combats  be- 
tween two  harmless  but  portentous  foes.  They  have  no 
natural  sympathy  with  captiousness,  and  partisanship,  and 
mutual  recriminations.  They  have  a  right  to  look  for,  and 
hence  they  expect,  in  learned  and  experienced  champions 
of  the  truth,  a  dignity,  a  courtesy,  a  candor,  not  irreconcil- 
able with  earnestness  and  vigilance,  but  utterly  opposed  to 
.passion,  artifice,  and  impudence.  The  jury  will  incline  to 
follow  him  in  whom  they  believe,  and  they  will  believe  in 
him  who  seems  to  be  most  thoroughly  convinced  that  he  is 
in  the  right,  and  most  devoted  to  the  full  and  perfect  pre- 
sentation of  the  truth  to  them.  The  advocate  must,  there- 
fore, appear  anxious  to  afford  them  the  widest  opportunity 
to  hear  and  judge  of  the  real  merits  of  the  case,  and  to  ex- 
amine all  the  facts,  whether  they  confirm  or  contradict  his 
claims.  He  must  avoid  all  trivial  objections  to  the  evi- 
dence, which  though  sustained  seem  like  an  effort  at  con- 
cealment, and  if  overruled  create  an  apparent  controversy 
between  him  and  the  court.  He  should  defend  against  ob- 
jections mildly,  without  temper  and  without  exhibiting  anx- 
iety as  to  the  ultimate  ruling  of  the  judge,  treating  the  matter 
as  of  little  moment  lest,  if  the  ruling  be  adverse,  the  jury 
deem  the  cause  itself  impugned.  If  his  witnesses  are  inter- 
ested in  the  cause,  or  otherwise  are  open  to  attack,  he  should 
anticipate  the  inevitable  disclosures  of  the  cross-examination 
by  placing  the  defect  before  the  jury  in  its  least  repulsive 
form.  He  must  shun  all  appearance  of  leading  or  dictating 
to  his  witnesses,  as  well  as  every  act  or  look  which  might  sug- 
gest a  secret  understanding  as  to  the  nature  of  the  evidence 
they  are  to  give.  His  questions  should  be  clear  and  simple, 
slowly  and  deliberately  uttered,  and  time  afforded  to  the  wit- 
ness to  comprehend  and  fully  answer  them.  No  question 
172 


DIRECT   EXAMINATION    OF   WITNESSES.     §213 

should  be  asked  without  an  object,  the  danger  of  an  un- 
expected and  disastrous  answer  being  even  less  than  of  im- 
patience on  the  part  of  court  and  jury  at  the  evident  and 
wanton  waste  of  time.  Strife  and  contention  with  opposing 
advocates,  an  unaccommodating  or  suspicious  manner,  rude- 
ness and  anger  toward  adverse  witnesses,  petulant  interfer- 
ence with  the  progress  of  the  trial,  —  in  fine,  every  act  and 
word  which  betrays  vexation,  disappointment,  or  personal 
animosity,  or  is  inconsistent  with  the  supposed  wisdom, 
courage,  or  honesty  of  counsel,  weakens  the  influence  of  the 
advocate  over  the  jury  and  renders  them  impervious  to  his 
most  convincing  and  persuasive  proof.  If  he  presents  him- 
self before  them,  not  to  entertain  or  bore  or  bully  them,  but 
simply  to  assist  them  to  arrive  at  truth  and  to  perform  their 
duty,  and  they  so  receive  him,  he  may  depend  upon  their 
confidence  and  sympathy,  and,  if  his  cause  is  well  supported 
by  the  evidence,  upon  their  verdict. 


173 


§214  FORENSIC   ORATORY. 


CHAPTER  X. 

OF  THE  CROSS-EXAMINATION    OF    WITNESSES. 

§  214.    Cross-Examination :  its  Purpose. 

The  same  ultimate  purpose  which  controls  the  advocate 
during  the  production  of  his  own  evidence  also  controls  his 
cross-examination  of  opposing  witnesses.  Their  testimony, 
if  of  any  value,  has  communicated  certain  ideas  to  the  jury. 
It  has  created  an  impression  favorable  to  the  party  by  whom 
they  were  called.  It  has  to  some  extent  convinced  them  of 
the  justice  of  his  claims,  perhaps  persuaded  them  to  vindi- 
cate him  by  their  verdict.  It  is  the  object  of  the  cross- 
examination  to  obliterate  these  impressions,  to  undermine 
the  foundations  on  which  the  convictions  of  the  jury  have 
been  based,  to  change  their  confidence  in  the  testimony  of 
these  witnesses  into  distrust,  and  their  good  will  toward  the 
adversary  into  permanent  hostility. 

§  215.     Cross-Examination  an  Oratorical  Act :  its  Limita- 
tions. 

The  cross-examination  is  thus  as  truly  classed  among  the 
oratorical  efforts  of  the  advocate  as  any  other  act  that  he 
performs.  It  does  not,  like  the  presentation  of  his  own  evi- 
dence, contain  the  elements  of  a  complete  oration.  It  does 
not  purpose  to  conciliate,  to  convince,  and  to  persuade.  It 
is  rather  a  species  of  refutation.  Its  nature  is,  in  the  main, 
destructive.  It  aims  to  overthrow,  not  to  build  up  ;  to  dis- 
integrate and  scatter,  not  to  gather  and  consolidate.  Hence 
its  sphere  is  narrow,  its  methods  are  restricted,  its  forensic 
value  limited.     It  is  confined  within  the  path  marked  out  by 

174 


CROSS-EXAMINATION   OF   WITNESSES.       §217 

the  direct  examination.  Its  sole  immediate  objects  of  attack 
are  the  individual  witness  and  his  testimony.  It  aids  the 
cause  of  him  who  conducts  it  just  in  proportion  to  the  im- 
portance of  the  impressions  made  by  that  witness  and  his 
evidence  upon  the  jury,  and  the  extent  to  which  those  im- 
pressions are  counteracted  or  removed. 

§  216.  Cross-Examination :  Cross-Examiner  must  Under- 
stand the  Witness  and  the  Impressions  already- 
Made  by  him  upon  the  Jury. 

Successful  cross-examination  presupposes  in  the  cross- 
examiner  a  thorough  knowledge  of  the  witness  and  of  the 
impressions  which  his  evidence  has  made  upon  the  jury. 
What  impression  it  has  made  upon  the  advocate  himself  is  of 
no  consequence ;  it  is  not  that  impression  which  he  seeks  to 
counteract.  Evidence  which,  in  his  view,  annihilates  his 
cause  may,  from  some  fault  in  its  delivery,  fail  to  catch  their 
attention,  while  some  small  mote  of  doubt  or  contradiction, 
too  insignificant  to  attract  his  notice,  becomes  a  beam  before 
their  mental  vision.  To  neutralize  these  impressions  he 
must  have  perceived  both  them  and  the  causes  from  which 
they  resulted,  and  in  the  operation  of  these  causes  must  dis- 
cern the  method  by  which  their  effects  can  be  removed. 
Otherwise,  however  satisfactory  to  himself  or  to  his  client 
may  be  his  efforts  to  destroy  the  witnesses,  he  will  not  impair 
the  influence  which  they  have  exerted  on  the  jury,  and  by  his 
cross-examination  will  have  retarded  rather  than  advanced 
his  cause. 

§  217.  Cross-Examination :  Duties  of  the  Cross-Examiner 
during  the  Direct  Examination. 
During  the  direct  examination  the  cross-examiner  has 
thus  three  objects  of  study :  the  witness,  his  testimony,  and 
the  jury.  He  studies  the  witness  that  he  may  learn  his 
points  of  weakness  and  of  strength,  and  discover  where  his 

175 


§  217  FORENSIC   ORATORY. 

armor  is  impenetrable,  and  where,  in  some  swift  moment  of 
advantage,  his  mail  will  open  to  let  in  a  deadly  blow.  He 
weighs  the  evidence,  as  answer  after  answer  brings  it  in,  and 
determines  its  degree  of  probability,  the  possibility  of  con- 
tradicting it,  and  its  ultimate  effect  upon  the  cause.  He 
watches  with  increasing  vigilance  the  attitude  and  faces  of 
the  jury,  with  every  spiritual  sense  alert  to  catch  the  echo  or 
reflection  of  the  ideas  which  occupy  their  thoughts  and  of 
the  emotions  which  are  working  on  their  wills.  So  much  of 
the  result  of  all  these  observations  as  cannot  be  safely  trusted 
to  his  memory,  he  notes  on  some  convenient  page,  —  a 
roster  of  the  forces  of  the  enemy,  a  rough  but  useful  plan 
of  his  campaign. 

§  218.  Cross-Examination :  Cross-Examiner  not  to  Inter- 
fere during  the  Direct  Examination. 
As  far  as  possible  the  advocate  should  also  refrain  from  in- 
terrupting the  direct  examination  of  the  witnesses.  Where 
evidence  that  is  clearly  inadmissible,  and  actually  injurious  to 
his  cause,  is  offered,  he  must  of  course  object,  except  when 
the  same  matter  is  certain  to  appear  at  some  other  period  in 
the  trial.  But  the  mere  fact  that  testimony  is  irrelevant  or 
immaterial,  or  that  the  questions  of  the  adversary  are  im- 
proper in  assumption  or  in  form,  does  not  of  itself  warrant 
such  an  interruption.  The  attention  of  the  jury  is  riveted 
upon  the  witness.  They  are  endeavoring  to  follow  the  cur- 
rent of  his  thought,  and  to  comprehend  the  ideas  he  is  trying 
to  convey.  Any  disturbance  of  this  process  by  a  third  party 
naturally  provokes  them,  even  although  they  understand  the 
interference  to  be  sanctioned  by  the  rules  of  law.  In  the 
controversy  to  which  the  objection  leads,  they  always  sympa- 
thize with  him  from  whom  they  are  deriving  information.  If 
the  objection  should  be  overruled,  they  will  be  pleased  to  see 
the  intruder  silenced  ;  and  if  sustained,  they  are  not  likely  to 
be  satisfied  with  one  who  has  deprived  them  of  the  oppor- 
176 


CROSS-EXAMINATION   OF   WITNESSES.       §219 

tunity  to  learn  some  fact,  concerning  which  its  very  suppres- 
sion makes  them  only  the  more  curious.  Still  more  to  be 
avoided  is  that  pernicious  practice  of  interfering  with  the 
opposing  witnesses  during  their  direct  examination.  It  is  a 
constant  habit  with  some  counsel,  naturally  pugnacious  and 
not  possessing  thorough  self-command,  to  bristle  at  an  ad- 
verse witness  the  instant  he  appears  upon  the  stand.  They 
cannot  wait  to  study  his  character,  to  weigh  his  evidence,  or 
to  watch  the  effect  which  he  produces  on  the  jury,  but  on 
all  provocations  and  on  no  provocation  they  assail  him,  scold 
him,  and  create  general  confusion.  Such  conduct  necessa- 
rily prejudices  all  the  hearers  against  the  obnoxious  advo- 
cate, calls  down  upon  him  the  just  censure  of  the  court,  and 
not  infrequently  provokes  the  witness  to  a  swift  and  terrible 
retaliation. 

§  219.  Cross-Examination :  Interference  of  the  Cross- 
Examiner  during  the  Direct  Prejudices  his 
Cross-Examination. 
No  introduction  to  a  cross-examination  can  be  more 
unfortunate  than  this.  A  cross-examination,  though  a  true 
intellectual  and  moral  battle  between  the  witness  and  the 
advocate,  ought  never  to  appear  such  to  the  jury.  The 
contest  is  too  evidently  an  unequal  one.  On  this  side,  the 
trained  lawyer,  armed  with  all  the  weapons  of  forensic  war- 
fare, familiar  with  the  court-room  and  its  usages,  and  free  to 
choose  his  times  and  methods  of  attack  ;  on  that  side,  the  un- 
trained witness,  embarrassed  by  his  strange  position,  bound 
hand  and  foot  by  rigid  rules  which  compel  him  to  be  silent 
unless  commanded  to  speak  by  his  tormentor,  and  without 
other  weapons  than  his  native  wit  and  honesty  of  purpose  ; 
the  jury  must  be  more  or  less  than  men  if  they  do  not 
instinctively  array  themselves  beside  the  weaker  party,  and 
become  eager  to  avenge  his  wrongs.  In  such  a  contest  the 
only  issue  favorable  to  an  advocate,  who  openly  attacks  a 

12  I77 


§  219  FORENSIC    ORATORY. 

witness,  is  one  which  satisfies  the  jury  that  the  witness  is  a 
liar.  Then  the  enmity  and  vituperation  of  the  advocate 
will  seem  appropriate,  and  the  revulsion  in  the  feelings  of 
the  jury,  when  this  fact  appears,  will  carry  their  adhesion  to 
him  more  decisively  than  any  other  possible  event  could  do. 
But  merely  to  exhibit  the  illiteracy  or  weakness  of  the  wit- 
ness as  contrasted  with  the  vigor  and  acuteness  of  his 
disciplined  antagonist,  if  it  be,  as  it  rarely  is,  in  any  sense 
a  triumph,  is  one  unworthy  of  a  generous  profession  and 
utterly  unprofitable  to  a  cause.  A  cross-examination  should 
appear  to  be,  what  it  really  is,  the  serious  performance  of  a 
duty,  an  earnest  effort  to  arrive  at  truth.  It  should  be 
dignified  and  courteous,  not  necessarily  assuming,  like  the 
direct  examination,  that  the  witness  is  sincere  and  worthy  of 
belief,  but  manifesting  only  the  determination  to  elicit  from 
him  willing,  and  to  wrest  from  him  unwilling,  the  facts  which 
he  is  able  to  disclose.  Apparent  severity  in  the  examiner 
should,  therefore,  never  be  permitted  to  anticipate  apparent 
demerit  in  the  witness.  On  the  contrary,  his  treatment  by 
the  advocate  should  be  a  manifestation  of  the  feelings  enter- 
tained toward  him  by  the  jury,  —  tender  and  considerate 
when  they  are  friendly,  rigorous  and  crushing  when  they 
become  indignant  and  enraged.  From  this  view  of  the 
cross-examination  it  is  evident  that  the  impression  made 
upon  the  jury  by  an  advocate  who  begins  his  conflict  with 
the  witness  before  he  is  fairly  on  the  stand,  and  who  treats 
him  with  rudeness  and  brutality  while  as  yet  he  has  given 
no  offence  save  by  appearing  as  a  witness  for  the  other  side, 
must  be  a  most  disastrous  one.  So  far  from  rendering  any 
service,  the  ensuing  cross-examination  will  seem  but  a  more 
violent  repetition  of  his  wanton  cruelty.  With  every  new 
attack,  with  every  new  wound  inflicted  on  the  witness,  the 
jury  will  realize  only  the  more  deeply  the  venom  and  merci- 
lessness  of  the  lawyer,  and  the  defencelessness  and  weakness 
of  his  victim.  The  contradictions  in  the  evidence,  the 
178 


CROSS-EXAMINATION   OF   WITNESSES.       §  221 

vacillations  of  the  witness,  his  half-unwilling  assent  to  the 
propositions  of  the  advocate,  all  these  will  be  forgotten. 
Nothing  remains  with  them  but  their  compassion  for  the 
insulted  and  downtrodden  witness,  and  their  repugnance 
and  hostility  toward  his  relentless  foe. 

§  220.  Cross-Examination :  Interference  of  Cross-Ex- 
aminer -with  the  Direct :  Method  of,  when 
Necessary. 

Whenever,  therefore,  during  the  direct  examination,  neces- 
sity requires  the  intervention  of  the  cross-examiner,  he  must 
interfere,  not  as  an  enemy,  but  as  a  respectful  friend.  As  a 
general  rule,  the  witness  himself  should  never  be  personally 
addressed.  Any  suggestions  as  to  his  tone  of  voice,  or  the 
rapidity  or  clearness  of  his  utterance,  or  the  pronunciation 
or  meaning  of  his  words,  should  be  directed  to  the  counsel 
who  examines  him,  or  to  the  court  itself.  Objections  to  his 
evidence  or  to  the  questions  of  the  counsel  should  be  made 
in  like  manner ;  the  advocate  avoiding  all  collision  or  com- 
munication with  the  witness  until  at  last  he  has  him  in  his 
hands. "  By  these  means  he  may  secure  all  the  legitimate 
results  which  any  interference  could  produce,  and  at  the 
same  time  may  approach  the  witness  at  the  cross-examina- 
tion without  having  been  previously  recognized  by  him  as  an 
enemy,  and  without  having  alienated  from  himself  either  the 
jury  or  the  court. 

§  221.    Cross-Examination  :  its  Dangers. 

The  dangers  which  attend  the  cross-examination,  although 
not  numerous,  are  serious  and  subtle.  One  incautious  inquiry 
may  open  the  door  to  hostile  testimony  otherwise  inadmis- 
sible. One  leading  question  may  stimulate  the  memory  or 
imagination  of  a  dull  or  rambling  witness,  and  enable  him  to 
state  important  matters  hitherto  forgotten,  or  to  reiterate  with 
increased  assurance  and  intensity  what  previously  had  been 

179 


§  221  FORENSIC   ORATORY. 

insinuated  rather  than  affirmed.  The  shrewd  aggressive  wit- 
ness, sure  to  relate  all  the  injurious  facts  at  his  command 
Whenever  opportunity  is  given  him,  in  cross-examination 
often  finds  this  opportunity,  and  how  well  he  improves  it 
every  lawyer  of  experience  has  seen  reason  to  regret.  Even 
the  stupid  witness,  over  whose  evidence  the  adverse  counsel 
has  brooded  long  in  vain,  roused  by  the  apprehension  of 
impending  danger,  and  goaded  by  the  stinging  sneers 
and  accusations  of  the  cross-examiner,  develops  into  an 
alert,  vindictive  enemy,  and  finally  returns  him  blow  for 
blow. 

§222.    Cross-Examination :  Rarely  to  be  Omitted. 

No  just  excuse  for  the  omission  of  a  cross-examination 
arises,  however,  from  the  presence  of  such  dangers.  With 
care  and  skill  all  these  can  be  avoided,  but  neither  care  nor 
skill  can  remedy  the  ills  which  may  result  from  the  dismissal 
of  a  witness  without  subjecting  him  to  this  ordeal.  Except 
through  some  gross  misconception  of  the  adversary  no  wit- 
ness is  ever  put  upon  the  stand  unless  he  or  his  evidence  is 
calculated  favorably  to  impress  the  jury.  The  assumption 
that  no  such  impression  has  been  made  is  rarely  justifiable, 
and  if  it  has  been  made,  though  in  a  slight  degree,  it  is  an 
act  of  folly  to  permit  him  to  depart  leaving  that  impression 
wholly  undisturbed.  Failure  to  cross-examine  indicates  to 
the  jury  either  that  the  advocate  does  not  dare  to  enter  into 
conflict  with  the  witness,  or  that  he  regards  him  and  his 
testimony  as  too  insignificant  to  merit  his  attention.  If  it 
indicates  the  former,  the  value  of  the  witness  to  the  other  side 
is  infinitely  augmented ;  if  the  latter,  it  reflects  severely  on 
the  wisdom  of  the  advocate,  and  on  his  claim  to  their  respect 
and  confidence,  unless  their  estimation  of  the  evidence  agrees 
with  his.  Therefore,  aside  from  those  infrequent  cases  in 
which  the  witness  has  already  made  a  bad  impression  on  the 
jury,  —  a  bad  impression  which  his  cross-examination  is  not 
1 80 


CROSS-EXAMINATION  OF  WITNESSES.       §223 

likely  to  intensify  or  may  possibly  remove,  —  the  advocate 
should  always  cross-examine,  not  necessarily  at  any  length 
nor  with  regard  to  the  material  portions  of  his  evidence,  but 
with  sufficient  vigor  and  persistence  to  show  them  that  the 
testimony  of  the  witness  is  not  feared. 


§  223.    Cross-Examination :  its  Scope  and  Methods. 

The  purpose  of  the  cross-examination  is  to  remove  or 
counteract  the  impressions  in  favor  of  the  adverse  party 
made  by  the  direct  examination  upon  the  jury.  These  im- 
pressions may  be  removed  either  by  showing  that  the  testi- 
mony already  given  by  the  witness  is  incorrect,  or  that  the 
witness  himself  is  unreliable.  They  may  be  counteracted 
by  obtaining  from  the  witness  statements  derogatory  to  the 
side  which  called  him,  or  favorable  to  that  of  the  cross- 
examiner.  A  cross-examination  may  thus  pursue  one  or 
more  of  three  methods.  It  may  attack  the  evidence  ad- 
duced on  the  direct ;  or  it  may  attack  the  credibility  of  the 
witness ;  or  it  may  use  him  as  a  weapon  of  attack  against  the 
adversary.  Which  of  these  methods  it  is  advisable  to  adopt, 
in  any  particular  case,  must  depend  upon  the  circumstances. 
If  the  witness  is  known  to  be  credible,  the  cross-examiner 
should  endeavor  to  overthrow  or  qualify  his  testimony,  or  to 
render  it  or  certain  parts  of  it  available  in  support  of  his  own 
claims.  Where,  on  the  other  hand,  the  witness  can  be  suc- 
cessfully attacked,  his  evidence  is  by  the  same  attack  demol- 
ished, while  every  admission  he  may  be  compelled  to  make 
in  favor  of  the  cross-examiner  is  most  effective.  The  cross- 
examiner  should  determine,  at  the  outset,  which  of  these 
methods  is  to  be  employed,  remembering  that,  unless  there  is 
a  reasonable  prospect  of  showing  that  the  witness  is  unworthy 
of  belief,  an  attack  upon  him  is  usually  unwise,  and  when 
made  at  all  must  be  so  quietly  and  insidiously  conducted  as 
to  arouse  no  prejudices  in  the  jury  if  it  chance  to  fail. 

181 


§  224  FORENSIC   ORATORY. 

§  224.  Cross-Examination :  Exposure  of  Incorrectness  in 
the  Testimony  of  a  Credible  "Witness  :  Incorrect- 
ness Arising  from  Faults  of  Expression. 
Incorrectness  in  the  testimony  of  a  credible  witness  arises 
either  from  faults  of  expression  which  distort  or  conceal  facts 
within  his  actual  knowledge,  or  from  his  presentation  of 
erroneous  inferences  as  facts,  or  from  his  honest  mistake  con- 
cerning facts  themselves.  Each  of  these  forms  of  incor- 
rectness is  by  a  careful  cross-examination  easily  detected 
and  exposed.  Faults  of  expression  which  distort  the  facts 
described  by  a  witness  consist  in  the  misuse  of  terms  de- 
noting acts  or  objects,  or  in  the  exaggeration  or  extenua- 
tion of  their  qualities.  Nothing  is  more  common  than  such 
errors  of  speech,  even  among  the  most  honest  and  intel- 
ligent of  narrators.  They  arise  partly  from  ignorance  of 
the  precise  meanings  of  words,  partly  from  careless  hab- 
its of  utterance,  partly  from  the  intrusion  of  the  imagination 
into  the  operations  of  the  memory.  The  cross-examiner, 
if  familiar  with  the  facts  narrated,  finds  no  difficulty  in  dis- 
covering these  errors  ;  and  even  when  not  familiar  with  them, 
his  general  knowledge  of  affairs,  and  of  the  other  facts  in- 
volved in  the  transaction,  suggests  to  him  the  points  in 
reference  to  which  the  language  of  the  witness  is  probably 
defective.  Errors  consisting  in  the  misuse  of  terms  can  be 
corrected  by  requiring  the  witness  to  define  their  meaning  as 
he  understands  it,  to  state  the  fact  in  other  language,  or  to 
present  such  explanations  and  illustrations  as  will  communi- 
cate his  own  conceptions  to  the  jury.  Exaggerations  or 
extenuations  so  frequently  occurring  in  relation  to  the  dis- 
tance, speed,  duration,  and  certain  other  attributes  of  objects, 
and  to  the  language,  actions,  and  aspects  of  persons,  can  be 
eliminated  by  compelling  the  witness  to  compare  the  quality 
described  with  some  known  standard,  or  by  presenting  to 
him  other  matters  that  he  has  correctly  stated  as  tests  by 
which  to  measure  and  reform  his  estimate  of  these,  or  by 
182 


CROSS-EXAMINATION   OF  WITNESSES.       §  224 

subjecting  him  to  a  rapid  fire  of  disconnected  questions 
touching  the  various  details  he  has  mentioned,  by  which  his 
association  of  the  events  is  broken  up,  and  each  is  recollected 
and  narrated  free  from  the  coloring  which  it  reflected  from 
the  others.  Faults  of  expression,  concealing  facts  that  the 
witness  is  able  and  is  personally  willing  to  disclose,  are  almost 
inevitable  under  the  conditions  which  usually  attend  the  pre- 
sentation of  his  evidence.  The  more  skilful  is  the  opposing 
advocate,  and  the  more  thoroughly  he  has  prepared  his  case, 
the  more  probable  is  it  that  the  testimony  given  by  his  wit- 
nesses, in  answer  to  his  questions  on  the  direct  examination, 
has  been  confined  by  the  forms  of  his  interrogatories  and 
their  replies  to  matters  favorable  to  himself;  and  that  other 
inquiries,  though  on  the  same  general  subjects,  may  elicit 
statements  which  qualify  while  they  complete  the  narrative 
as  it  now  stands  before  the  jury.  For  this  purpose  the  cross- 
examiner  may  call  upon  the  witness  to  repeat  his  story, 
unaided  by  questions,  in  the  chronological  order  of  events. 
His  memory  thus  charged  with  an  unexpected  burden,  and 
his  mind  awakened  by  the  fear  of  error,  he  will  endeavor  to 
recite  the  transaction  in  its  completeness  as  accurately  as  his 
command  of  language  will  permit,  without  reflecting  on  the 
consequences  which  may  flow  to  either  party  from  the  dis- 
closure. Or,  if  the  witness  is  intellectually  unequal  to  this 
effort,  the  cross-examiner  may  question  him  as  to  each  detail 
and  all  its  attendant  circumstances,  from  the  beginning  to 
the  end  of  the  transaction,  giving  him  time  to  recall,  and  en- 
couraging him  to  state,  everything  he  can  remember  which 
can  throw  light  upon  the  incidents  described.  This  mode  of 
cross-examination  contains  one  element  of  danger,  —  that 
the  new  matter  elicited  may  strengthen  rather  than  impair 
the  impression  made  by  that  already  placed  before  the  jury, 
—  and  should,  therefore,  never  be  adopted  unless  the  cross- 
examiner  is  reasonably  sure  that  no  such  knowledge  has  been 
withheld  by  the  witness,  and  that  whatever  he  may  gather  on 

183 


§  224  FORENSIC   ORATORY. 

the  cross-examination  will  prove  harmless  to  himself  even  if 
unprofitable. 

§  225.  Cross-Examination  :  Exposure  of  Incorrectness 
in  the  Testimony  of  a  Credible  Witness :  Incor- 
rectness Arising  from  Stating  Inferences  as 
Facts. 

Witnesses,  like  all  other  men,  are  liable  to  draw  erroneous 
inferences  from  what  they  see  and  hear,  and,  having  drawn 
them,  to  substitute  them  for  the  facts  from  which  they  were 
derived.  Much  of  the  evidence  introduced  in  court,  espe- 
cially concerning  promises,  admissions,  threats,  and  other 
spoken  words,  is  of  this  character,  the  witness  describing,  not 
the  language  or  events  which  operated  on  his  senses,  but  the 
conclusions  which  he  formed  from  them  in  his  own  mind. 
If  undisputed,  these  conclusions  are  accepted  by  the  jury  as 
the  facts  themselves,  and  their  judgment  in  the  premises  thus 
merely  reflects  that  of  the  witness.  Here,  therefore,  is  a 
source  of  error  which  the  cross-examiner  should  never  over- 
look. His  method  of  combating  it  is  by  refusing  to  receive 
the  inferences  of  the  witness,  and  insisting  on  the  full  disclos- 
ure of  the  facts  on  which  the  inference  is  based.  If  these 
are  insufficient  to  support  the  inference,  the  jury  will  perceive 
its  fallacy,  or  the  advocate  will  expose  it  in  his  argument.  If 
the  facts  are  sufficient,  and  the  inference  correct,  the  cross- 
examination  has  been  a  source  of  neither  loss  nor  gain.  One 
great  temptation,  however,  the  cross-examiner  must  invariably 
resist,  —  the  temptation  to  convince  the  witness  of  his  error. 
If  after  he  has  stated  all  the  facts  the  baselessness  of  his  con- 
clusion becomes  evident  to  him,  and  he  confesses  his  mis- 
take, it  is  a  signal  triumph.  But  any  attempt  to  force  this 
confession  from  him  is  fraught  with  danger.  So  far  from 
acknowledging  his  error  he  will  often  fortify  it  by  new  facts, 
remembered  or  imagined,  which  defeat  the  advocate  and 
convince  the  jury. 
184 


CROSS-EXAMINATION   OF   WITNESSES.       §  227 

§  226.  Cross-Examination  :  Exposure  of  Incorrectness  in 
the  Testimony  of  a  Credible  Witness  :  Incor- 
rectness Arising  from  Mistakes  of  Fact. 
Misrepresentations  which  arise  out  of  mistakes  as  to  the 
facts  themselves  are  frequently  discovered  in  the  evidence. 
Men  often  think  they  see  what  they  do  not  see,  and  still 
more  often  misinterpret  what  they  hear.  The  physical 
senses,  however  accurate  and  reliable  in  themselves,  depend 
for  the  correctness  of  their  impressions  so  entirely  on  sur- 
rounding circumstances,  that  without  considering  these  the 
truth  of  those  impressions  cannot  be  determined.  When- 
ever, therefore,  the  direct  examination  has  revealed  impor- 
tant facts  resting  upon  the  sensations  of  the  witness,  the 
conditions  under  which  those  sensations  were  experienced 
demand  the  careful  scrutiny  of  the  cross-examiner.  Thus, 
where  the  witness  gained  his  information  through  the  sense 
of  sight,  the  degree  of  light,  the  distance  and  position  of  the 
object,  the  characteristics  which  distinguish  it  from  other 
classes  of  objects  and  from  other  objects  of  the  same  class, 
its  resemblance  to  surrounding  objects,  the  familiarity  of  the 
witness  with  it,  the  extent  and  duration  of  his  attention  to  it, 
and  many  other  matters  bearing  a  similar  relation  to  the  act 
of  vision,  are  necessary  subjects  of  inquiry.  The  operation 
of  the  other  senses  demands  the  same  kind  of  investigation. 
The  advocate  will  never  be  at  a  loss  in  this  respect  if  he  puts 
himself  in  the  place  of  the  witness  at  the  moment  the  sensa- 
tion was  experienced,  and  realizes  the  difficulties  which 
would  have  attended  the  operation  of  his  own  senses  con- 
cerning the  matters  in  dispute. 

§  227.    Cross-Examination :  Exposure  of  Incorrectness   in 

the  Testimony  of  a  Credible  "Witness  :  Attitude 

of  Cross-Examiner  toward  the  Witness. 

In  this  method  of  cross-examination  it  is  assumed  that  the 

witness  is  credible,  and   is  to  be  recognized  as  such  by  the 

I85 


§  22y  FORENSIC   ORATORY. 

jury.  No  attack  upon  him  by  the  cross-examiner,  therefore, 
is  permissible.  He  is  entitled  to  the  confidence  which  intel- 
ligence and  honesty  ought  always  to  command,  and  to  the 
courteous  treatment  which  confidence  inevitably  inspires. 
An  advocate  who  manifests  toward  such  a  witness  a  pugna- 
cious or  contemptuous  disposition  places  himself  at  once  in 
antagonism,  not  only  with  the  witness,  but  also  with  the  jury 
and  the  court,  and  every  blow  or  sneer  he  offers  to  the  wit- 
ness recoils  with  fatal  violence  upon  his  cause.  On  the  con- 
trary, the  attitude  of  the  cross-examiner  toward  the  evidently 
credible  witness  can  only  be  that  of  an  inquirer  and  a  friend ; 
an  inquirer  who  seeks  further  or  clearer  information  from  his 
lips ;  a  friend  who  modestly  endeavors  to  enable  him  to  lay 
before  the  jury  whatever  may  shed  light  upon  the  merits  of 
the  controversy.  Like  that  of  any  other  friendly  inquirer, 
his  demeanor  should  be  mild,  respectful,  and  encouraging. 

§  228.  Cross -Examination.:  Exposure  of  the  Unreliability 
of  the  Witness  :  Causes  of  Unreliability. 
No  witness  is  worthy  of  belief  unless  he  can  accurately 
apprehend,  remember,  and  describe  events,  is  able  and  dis- 
posed to  state  them  truthfully,  and  possesses  a  character 
which  commands  the  respect  and  confidence  of  those  who 
hear  him.  A  cross-examination  which  reveals  the  absence 
of  either  of  these  qualities  impairs  his  credibility,  and  thus 
diminishes,  and  perhaps  destroys,  the  favorable  impression 
which  his  testimony  has  already  made. 

§  229.    Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness:  Defective  Apprehension:   Dis- 
ordered Senses. 
The  degree  of  accuracy  with  which  a  witness  apprehends 
an  object  depends  upon  the  condition  of  his  physical  senses, 
upon  his  previous  acquaintance  with  the  object,  and  upon 
the  attention  with  which  the  object  is  surveyed.     That  the 
1 86 


CROSS-EXAMINATION   OF   WITNESSES.       §  23O 

defective  operation  of  the  physical  senses  may  effectually 
prevent  the  witness  from  acquiring  exact  impressions  of  an 
action  or  event  is  self-evident.  Imperfect  vision  of  what- 
ever nature  or  degree,  deafness,  destruction  or  perversion  of 
the  taste  or  touch  or  smell,  close  up  the  avenues  through 
which  ideas  of  the  external  world  are  usually  communicated 
to  the  mind,  and  so  far  narrow  the  domain  of  knowledge. 
In  every  statement  of  a  witness  is  involved  the  assertion  that 
the  sense  through  which  his  information  was  derived  cor- 
rectly represented  to  him  the  object  he  describes,  and  in  the 
truthfulness  or  falsity  of  this  assertion  is  the  ultimate  and 
crucial  test  of  his  reliability.  This  is  a  field  of  inquiry  which 
the  vigilant  cross-examiner  will  never  neglect  to  explore.  In 
ages  past  it  may  perhaps  have  sately  been  assumed  that,  as  a 
rule,  the  organs  of  sensation  were  in  sound  condition,  but  in 
these  modern  days  no  such  presumption  can  be  entertained. 
Whatever  be  the  cause,  the  proportion  of  mankind  in  civil- 
ized communities  who  are  known  to  suffer  from  the  failure 
of  one  or  more  of  these  great  organs  to  perform  their  proper 
functions  seems  to  be  increasing;  and  every  witness  who 
professes  to  have  seen  or  heard,  or  to  otherwise  have  had  a 
physical  apprehension  of  an  object,  may  well  be  doubted 
until  the  soundness  of  the  sense  employed  has  been  estab- 
lished. By  a  few  practical  experiments  from  materials  at 
hand  in  every  trial,  these  faculties  of  the  witness  may  be 
tested  so  far  as  their  correctness  forms  the  basis  of  his  evi- 
dence, and  if  they  fail  to  undergo  the  test  the  evidence 
derived  from  them  must  also  fail. 

§  230.    Cross -Examination :  Exposure  of  the  Unreliability 

of  the  Witness :  Defective  Apprehension :    TJn- 

familiarity  with  the  Thing  Apprehended. 

The  previous  acquaintance  of  the  witness  with  the  object 

apprehended,  or  with  the  class  of  objects  to  which  it  belongs, 

determines  in  no  small  degree  the  measure  and  the  character 

187 


§  230  FORENSIC   ORATORY. 

of  his  perceptions.  In  every  object  there  is  inexhaustible 
meaning ;  the  eye  sees  in  it  what  the  eye  brings  means  of 
seeing.  Those  qualities  of  things  which  are  not  known  to  be 
inherent  in  them  are  rarely  noticed.  The  ordinary  traveller 
beholds  in  the  fairest  landscape  only  those  common  features 
of  mountain,  lake,  and  forest  to  which  his  thought  as  well  as 
sight  has  been  accustomed,  its  choicer  beauties  utterly  escap- 
ing his  inexperienced  eye.  To  the  uncultivated  hind  the 
vaulted  roof,  the  clustering  pillars,  and  the  glowing  frescos 
of  a  vast  cathedral  are  as  unmeaning  as  the  brilliant  acci- 
dents of  the  kaleidoscope.  Man  finds  in  every  object  only 
what  he  seeks.  He  sees  that  which  he  looks  for,  and 
no  more.  "  To  Newton  and  to  Newton's  dog  Diamond 
what  a  different  pair  of  universes  !  while  the  painting  on  the 
optical  retina  of  both  was  most  likely  the  same."  In  every 
inquiry  concerning  past  events,  the  ignorance  or  inexperi- 
ence of  the  beholder  is,  therefore,  a  most  important  element. 
Whatever  may  have  been  his  physical  sensations,  he  saw  that 
only  which  his  eye  was  trained  to  see ;  he  heard  that  only 
which  his  ear  was  trained  to  hear ;  and  granting  the  accu- 
racy of  his  memory,  the  correctness  of  his  language,  and  the 
honesty  of  his  purpose,  the  value  of  his  testimony  may  be 
measured  by  his  practical  experience  of  that  class  of  facts  to 
which  his  evidence  pertains.  This  practical  acquaintance  of 
a  witness  with  the  class  of  facts,  to  which  the  one  narrated  in 
his  evidence  belongs,  may  be  ascertained  either  by  applying 
to  him  some  immediate  and  sufficient  test,  or  by  general 
inquiries  concerning  the  extent  of  his  experience.  When 
practicable,  the  former  method  is  the  most  effective,  since,  if 
well  chosen,  it  at  once  demolishes  his  ignorant  pretensions 
and  destroys  his  credibility.  The  testimony  of  a  witness, 
who  has  sworn  ever  so  positively  that  an  event  occurred  at  a 
given  moment  by  the  watch,  will  be  annihilated,  if,  when 
directed  to  consult  the  court-room  clock,  he  cannot  tell  the 
time  of  day.  The  witness  who  unhesitatingly  asserted  the 
188 


CROSS-EXAMINATION   OF   WITNESSES.       §  23 1 

identity  of  handwriting  is  disbelieved,  if  other  writing  of  a 
similar  appearance  puzzles  and  confounds  him.  The  most 
formidable  scientific  disquisition  is  robbed  of  all  its  influence 
as  evidence,  if  some  kindred  problem  presented  to  the  wit- 
ness remains  without  a  satisfactory  solution.  No  class  of  wit- 
nesses is  proof  against  this  method  of  attack,  the  most  skilful 
and  experienced  experts  succumbing  to  some  simple  test 
devised  upon  the  instant  by  the  advocate,  and  exposing  to 
the  dullest  vision  the  worthlessness  and  weakness  of  their 
evidence.  The  general  interrogation  of  a  witness  concern- 
ing his  familiarity  with  any  class  of  facts  involves  no  special 
difficulty.  Having  pretended  to  a  knowledge  sufficient  to 
enable  him  to  perceive  such  objects  as  they  really  are,  he 
will  naturally  exaggerate  the  extent  and  thoroughness  of  his 
acquaintance  with  them,  and  if  disposed  to  falsehood  will 
even  invent  instances  and  occasions  through  which  his 
knowledge  was  acquired.  The  process  of  detecting  and  ex- 
posing these  errors  is  the  same  as  that  employed  in  other 
cases  of  exaggeration  and  untruth. 

§  231.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness  .  Defective  Apprehension  :  Want 
of  Attention. 

The  degree  of  intellectual  attention  with  which  an  object 
was  regarded  is  another  element  to  be  considered  in  deter- 
mining the  accuracy  and  completeness  with  which  it  was 
observed.  The  impressions  made  upon  the  eye  and  ear  are 
not  necessarily  communicated  to  the  mind.  By  whatever 
psychological  hypothesis  the  fact  may  be  explained,  it  is  still 
true  that  unless  the  thought  is  fixed  upon  the  object  of  sensa- 
tion the  sensation  terminates  with  the  organic  sense,  exciting 
no  ideas  and  leaving  no  trace  in  the  memory.  There  is  a 
constant  ratio  between  the  mental  concentration  of  the  ob- 
servei  on  the  object,  and  the  fulness  and  precision  of  the 
ideas  which  he  obtains  concerning  it.     Trainers  of  animals 

189 


§  231  FORENSIC    ORATORY. 

universally  concede  that  their  difficulties'  are  diminished  in 
proportion  to  the  attention  with  which  they  are  regarded  by 
their  pupils,  and  human  scholars  soon  discover  that  their  own 
progress  is  dependent  on  the  exclusiveness  with  which  their 
intellectual  forces  are  devoted  for  the  time  being  to  the  sub- 
ject of  their  study.  It  is  on  this  fact  that  the  rule  of  evidence 
is  based  which  gives  to  one  affirmative  witness  greater  weight 
than  to  many  merely  negative ;  a  recognition  that  though  in 
all  those  who  were  present  the  same  physical  sensations  may 
have  been  experienced,  yet  only  those  would  intellectually  ap- 
prehend the  action  or  event  whose  thought  was  antecedently 
directed  to  it.  By  the  same  fact  the  wonderful  variety  with 
which  the  details  of  a  transaction  are  described  by  a  variety 
of  witnesses  is  explained,  each  relating  incidents  which  espe- 
cially attracted  his  attention  and  omitting  all  the  others. 

§  232.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  "Witness :  Defective  Apprehension :  Want 
of  Attention  :  its  Causes. 
The  degree  of  attention  with  which  any  given  object  is 
regarded  depends  in  part  upon  the  power  of  mental  concen- 
tration naturally  possessed  by  the  observer,  and  in  part  upon 
the  circumstances  under  which  the  observation  itself  is  made. 
Some  persons,  either  through  a  constitutional  defect  or  from 
improper  training,  have  no  faculty  of  fixing  and  controlling 
their  own  thoughts.  Except  in  the  rarest  instances,  they 
never  give  their  full  attention  to  anything.  In  reading,  the 
eye  scans  the  printed  page,  but  the  mind  constantly  wanders 
from  it.  In  conversation,  the  ear  catches  the  words,  the 
understanding  comprehends  their  meaning,  and  the  tongue 
replies,  but  all  the  while  the  current  of  their  thoughts  is 
flowing  toward  entirely  different  subjects.  Other  persons 
habitually  bend  all  their  energies  to  the  work  in  hand. 
Their  eyes  see  all  that  their  knowledge  of  the  attributes  of 
things  enables  them  to  perceive.  Their  ears  catch  every 
190 


CROSS-EXAMINATION   OF   WITNESSES.       §  233 

sound  of  natural  objects,  every  syllable  and  undulation  of 
the  human  voice.  Their  senses  are  alive  to  every  impres- 
sion of  the  present  moment,  and  what  their  sense  perceives 
is  communicated  instantly  and  freely  to  their  minds,  unin- 
terrupted by  distractions,  unconfused  by  reveries.  Between 
these  two  extremes  are  all  varieties  of  men,  each  of  percep- 
tions whose  accuracy  is  in  proportion  to  the  attention  with 
which  he  surveys  the  objects  from  which  his  physical  sensa- 
tions are  derived. 

§  233.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness  :  Defective  Apprehension  :  Want 
of  Attention :  its  Causes. 
The  circumstances  of  the  observer  and  the  object,  and  the 
relations  subsisting  between  it  and  him,  also  affect  the  atten- 
tion with  which  he  regards  it,  and  its  consequent  impression 
on  his  mind.  The  degree  of  mental  energy  of  every  kind 
depends  largely  on  the  physical  condition  of  the  man  him- 
self. Weakness,  discomfort,  pain  of  whatever  character  or 
location,  destroy  his  power  of  concentration,  and  centralize  his 
thoughts  upon  his  own  distress.  Mental  disturbance,  haste, 
anxiety,  preoccupation,  or  any  other  sensible  emotion,  pro- 
duces the  same  absorption  in  himself  and  corresponding 
inattention  to  external  objects.  The  interest  or  indifference 
of  the  observer  toward  the  object,  its  familiarity  or  strange- 
ness to  him,  the  motive  in  obedience  to  which  he  directed 
his  attention  toward  it,  its  relations  to  him  as  the  sole  object 
of  attention  or  but  one  object  among  many  equally  interest- 
ing and  important  to  him,  the  duration  and  the  force  of  its 
operation  on  his  senses,  the  sensations  which  preceded  it  and 
succeeded  it,  and  the  effect  produced  by  these  upon  the 
one  in  question,  —  in  short,  every  circumstance  which  acted 
at  the  time  upon  "his  mind  or  body,  and  by  which  his  at- 
tention toward  this  one  object  may  have  been  diminished 
or  intensified,  is  worthy  of  investigation  and  consideration,  as 

191 


§233  FORENSIC   ORATORY. 

indicative  of  the  degree  to  which  the  object  took  possession 
of  his  thoughts. 

§  234.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness  :  Defective  Apprehension  :  Want 
of  Attention  :  how  Exposed. 

The  natural  or  cultivated  power  of  attention  with  which 
the  witness  is  endowed  may  be  determined  by  immediate 
practical  experiment.  It  usually  becomes  apparent  during 
the  direct  examination.  A  witness  of  habitually  attentive 
mind  manifests  it  by  the  facility  with  which  he  comprehends 
the  questions  of  the  examiner,  the  readiness  with  which  he 
answers,  and  the  rapidity  with  which  he  accommodates  him- 
self to  all  the  incidents  of  the  proceedings.  The  unattentive 
man  also  soon  indicates  his  weakness,  misunderstanding  even 
the  simplest  inquiries,  repeating  the  questions  as  if  uncertain 
that  he  correctly  heard  them,  or  continuing  his  story  after 
notice  to  suspend.  In  cross-examination  it  is  made  still 
more  apparent  by  directing  his  attention  to  an  object  or  a 
person,  and,  after  questions  on  another  subject,  asking  him 
to  identify  the  person  or  the  object  just  before  observed. 
A  readier  mode,  and  often  more  successful,  is  to  inquire  of 
him  concerning  some  place  or  thing  with  which  he  is  at  least 
as  well  acquainted  as  with  the  fact  to  which  he  has  already 
testified,  and  which  is  also  well  known  to  the  jury,  and  by  his 
failure  to  enumerate  some  of  its  principal  and  most  striking 
characteristics  exhibit  his  want  of  credibility  in  reference  to 
the  other  objects  which  he  has  described.  The  results  of 
such  experiments  are  sometimes  surprising ;  giving  to  the 
auditor  an  exceedingly  low  estimate  of  the  attention  with 
which  men  regard  the  most  familiar  objects,  and  conse- 
quently of  the  value  of  any  statement  as  to  what  is  seen  or 
heard.  The  physical  and  mental  condition  of  the  witness  at 
the  moment  of  the  observation,  his  interest  in  the  object, 
the  motives  actuating  him  in  its  regard,  its  situation  and 
192 


CROSS-EXAMINATION   OF   WITNESSES.       §235 

surroundings,  may  usually  be  successfully  explored  by  any 
proper  interrogatories.  Few  witnesses  will  hesitate  to 
answer  freely  any  inquiries  on  these  points,  and  when  an 
extraordinarily  suspicious  witness  hedges  and  prevaricates, 
the  common  arts  of  cross-examination  readily  extract  from 
him  the  facts  desired. 

§  235.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness :  Defective  Memory :  Defects 
Classified. 
To  such  an  accurate  perception  of  events  the  credible 
witness  must  add  a  good  and  faithful  memory.  It  is  not 
easy  to  define  in  what  a  faithful  memory  consists.  Some 
persons  are  endowed  with  excellent  general  memories,  recall- 
ing the  minutest  details  of  events  or  conversations  after  the 
lapse  of  many  years.  Others  remember  with  precision  and 
completeness  only  certain  classes  of  facts, — localities,  dates, 
faces,  names,  or  abstract  processes  of  thought.  Still  others 
are  without  distinct  recollections  of  any  kind,  their  memories 
apparently  preserving  some  faint,  uncertain  traces  of  almost 
every  incident  of  their  whole  lives,  but  with  no  clear  and 
definite  impression  in  regard  to  any.  In  persons  of  the  first 
description,  the  memory  may  always  be  considered  good. 
In  persons  of  the  second,  it  is  good  whenever  the  thing 
remembered  is  of  that  class  which  their  memories  are  accus- 
tomed to  preserve,  and  bad,  at  least  for  all  the  purposes  of 
evidence,  when  the  fact  belongs  to  that  class  which  their 
memories  do  not  retain.  In  persons  of  the  third  descrip- 
tion, the  memory  is  always  bad,  and  on  their  uncorroborated 
evidence  no  question  of  importance  ought  to  be  decided. 
Were  these  distinctions  generally  understood,  or  if  under- 
stood were  they  remembered  and  considered  by  the  jury, 
the  cross-examination  as  a  test  of  memory  should  properly 
be  limited  to  the  power  of  the  witness  to  retain  impressions 
concerning  the  class  of  objects  to  which  the  evidence  relates. 

13  193 


§  235  FORENSIC    ORATORY. 

When  the  inquiry  is  as  to  the  identity  of  persons,  the  ability 
of  the  witness  to  distinguish  and  remember  faces,  forms,  and 
voices  is  the  only  faculty  in  question,  and  whether  or  not 
localities  and  dates  are  easily  recollected  by  him  is  of  no 
consequence  whatever.  In  actual  practice,  however,  the 
law  permits  the  jury  to  infer  a  general  want  of  recollection 
from  a  special  one,  and  the  cross-examiner  to  expose 
defects  in  memory  by  testing  it  with  facts  of  any  class  that 
he  desires. 

§  236.  Cross-Examination  :  Exposure  of  the  Unrelia- 
bility of  the  Witness :  Defective  Memory :  how- 
Detected. 

The  direct  examination  of  the  witness  m  most  instances 
informs  the  advocate  as  to  the  true  condition  of  his  memory. 
If  he  speaks  positively  and  exhaustively  concerning  one  class 
of  facts,  and  hesitatingly  or  inaccurately  concerning  others,  it 
may  well  be  concluded  where  his  weakness  lies,  and  with 
what  questions  it  may  best  be  tested  and  exposed.  If  it  be 
generally  deficient,  the  whole  field  of  the  past  is  open  to  the 
advocate,  and  the  more  varied  and  disassociated  are  the 
topics  it  embraces,  the  more  thoroughly  are  his  defects  re- 
vealed. On  the  other  hand,  if  his  memory  appears  generally 
perfect,  and  able  to  recall  events  of  every  kind  with  equal 
ease,  the  cross-examiner  must  discover  a  deficiency  in  ref- 
erence to  some  class  of  facts  as  yet  unnoticed,  or  his  at- 
tempt will  but  corroborate  the  credibility  it  was  intended  to 
destroy. 

§  237.    Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness:  Defective  Memory:  how  Exposed. 
The  tests  applied  to  the  memory  of  a  witness  by  the  cross- 
examiner  must  be  fully  and  immediately  apparent,  as  such, 
to  the  jury.     If  the  subject  he  employs  is  not  one  which  the 
jury  realize  that  they  themselves  would  easily  remember,  the 
194 


CROSS-EXAMINATION   OF   WITNESSES.       §  238 

failure  of  the  witness  to  recall  it  will  create  no  surprise.  If  it 
is  so  far  outside  of  their  sphere  of  information  that,  when  he 
misremembers,  or,  not  remembering  at  all,  invents,  they  do 
not  instantly  detect  him,  they  can  draw  no  conclusion  as  to 
the  strength  or  weakness  of  his  memory.  These  tests  must, 
therefore,  be  such  as  the  jury  are  conscious  that  they  could 
endure,  and  also  such  as  they  can  see  that  the  witness  does 
not  successfully  sustain.  Questions  relating  to  important 
epochs  in  the  life  of  the  witness,  to  such  facts  in  the  cause 
as,  if  he  tells  the  truth  in  reference  to  his  knowledge  of  them, 
must  have  impressed  him  deeply,  to  those  public  events  of 
which  no  man  can  be  ignorant,  to  any  striking  occurrences  in 
the  court-room  during  the  trial  of  the  cause,  to  matters  fully 
demonstrated  in  his  presence  by  the  testimony  of  preceding 
witnesses,  or  to  objects  to  which  the  attention  of  the  witness 
is  directed  and  which  after  a  few  moments  he  may  be  re- 
quested -to  describe,  answer  these  two  requisites.  With  an 
honest  witness  this  method  of  examination  is  short  and  easy  j 
with  a  cunning  and  dishonest  witness  its  success  depends 
mainly  on  the  judgment  with  which  the  subject  for  these 
tests  has  been  selected. 

§  238.    Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness  :  Defective  Powers  of  Expression. 

The  reliability  of  a  witness,  as  a  source  of  knowledge,  is 
also  measured  by  his  power  of  expressing  accurately  and  in- 
telligibly the  ideas  which  he  has  received  and  still  retains. 
The  real  evidence  —  that  which  convinces  —  is  the  idea 
conveyed  by  the  words  of  the  witness  to  the  mind  of  the 
jury,  and  whether  this  idea  corresponds  with  the  facts  as  they 
actually  occurred  depends  no  less  on  the  propriety  of  the 
language  in  which  they  are  expressed  than  on  the  fulness  and 
precision  with  which  they  were  observed  and  remembered. 
Faults  of  expression  in  the  witness  thus  become  faults  of 
opinion  in  the  jury,  and  scarcely  less  prejudicial  to  the  inter- 

195 


§  238  FORENSIC   ORATORY. 

ests  of  the  cause  than  the  utterances  of  ignorance  or  false- 
hood. Among  uncultivated  persons  habitual  errors  of 
expression  are  not  uncommon.  They  use  words  in  an  im- 
proper or  provincial  sense.  They  employ  exaggerating 
epithets  and  adjectives.  They  describe  objects,  not  by 
delineating  their  characteristic  features,  but  in  fragmentary 
outlines,  or  by  portraying  their  most  universal  indistinctive 
attributes.  They  reproduce  events,  not  in  their  proper  order 
and  relations,  but  with  whatever  sequence  and  connection 
the  inspiration  of  the  moment  may  direct.  They  do  not 
lead,  but  mislead,  the  deductions  of  their  hearers,  with  the 
best  intentions  and  sufficient  knowledge  unwittingly  pro- 
ducing false  impressions  on  the  minds  of  those  whose  mistake 
originates  in  the  assumption  that  the  words  are  spoken  in 
the  same  sense  in  which  they  are  understood. 

§  239.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness :  Defective  Powers  of  Expression: 
how  Detected  and  Disclosed. 
With  witnesses  of  this  description  two  methods  of  cross- 
examination  are  available,  the  choice  between  them  depend- 
ing on  the  purpose  of  the  cross-examiner.  If  the  facts 
known  to  the  witness  when  completely  and  correctly  under- 
stood are  favorable  to  his  cause,  the  cross-examiner  should, 
as  heretofore  explained,  endeavor  to  perfect  and  elucidate 
the  testimony,  aiding  the  witness  to  express  the  ideas  which 
his  memory  retains,  and  spreading  before  the  jury  in  its 
clearest  and  most  convincing  light  the  truth  which,  without 
such  aid,  he  seems  unable  to  convey.  If  the  purpose  of  the 
advocate  is,  however,  to  destroy  the  testimony  of  the  witness, 
a  contrary  method  is  to  be  adopted.  Now  the  main  effort  is 
to  exaggerate  these  defects,  and  to  show  how  far  they  can 
distort  the  most  common  and  familar  things.  As  soon, 
therefore,  as  the  peculiar  errors  to  which  the  witness  is 
habitually  subject  are  discovered,  the  cross-examination  is  to 
196 


CROSS-EXAMINATION   OF  WITNESSES.      §  24O 

be  confined  to  matters  which  provoke  them,  and  which  are 
at  the  same  time  so  well  known  to  the  jury  that,  without  any 
explanation  by  the  advocate,  they  can  perceive  that  what  the 
witness  says  is  actually  untrue.  Thus,  if  he  uses  words  in  an 
erroneous  sense,  he  should  be  led  on  to  repeat  them  in  refer- 
ence to  ordinary  objects  until  the  jury  see  that  no  reliance 
can  be  placed  on  his  descriptions.  If  he  exaggerates  in  ref- 
erence to  certain  classes  or  attributes  of  things,  he  should 
be  made  to  reiterate  those  extravagant  expressions,  not  by 
repeating  the  same  questions,  but  by  eliciting  his  ideas  of 
different  yet  kindred  matters  in  regard  to  which  the  same 
kind  of  exaggeration  is  to  be  expected.  A  succession  of 
impressions  may  thus  be  made  upon  the  jury  to  the  disad- 
vantage of  the  witness,  tending  to  convince  them  that  in 
the  other  portions  of  his  testimony  the  same  uncertain  and 
deceptive  modes  of  speech  prevail. 

§  240.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  "Witness :  Untruthfulness :  Classes  of 
Liars. 

A  witness  who  is  not  able,  or  is  not  disposed,  to  tell  the 
truth,  fails  in  the  most  essential  attribute  of  credibility,  and 
from  the  moment  when  this  fault  becomes  apparent  to  the 
jury  their  confidence  in  him  and  in  his  testimony  is  at  an 
end.  Of  such  witnesses  there  are  three  classes  :  The  in- 
nocent liar,  whose  imaginations  are  so  intimately  mingled 
with  his  memories  that  he  does  not  distinguish  between  the 
facts  and  fancies  which  occupy  his  mind,  but  believes  and 
utters  both  alike  as  true ;  The  careless  liar,  whose  love  of 
the  pathetic  or  the  marvellous,  or  whose  desire  to  attract  atten- 
tion to  himself,  overcomes  his  weak  allegiance  to  the  truth, 
and  leads  him  to  weave  facts  and  falsehoods  together  in  his 
common  conversation,  to  round  out  his  narrations  by  the  in- 
sertion of  invented  incidents,  to  give  dramatic  completeness 
to  events  by  supplying  with  fiction  whatever  may  be  wanting 

197 


§  240  FORENSIC   ORATORY. 

in  the  circumstance  itself;  The  wilful  liar,  who  for  some 
definite  purpose  deliberately  asserts  what  he  knows  to  be 
untrue.  Liars  of  the  first  two  classes  are  not  chargeable 
with  grievous  moral  turpitude.  Their  faults  are  natural, 
usually  imperceptible  to  themselves,  though  often  known  to 
their  associates,  and  in  the  ordinary  affairs  of  life  are  rarely 
productive  of  serious  injury  to  others.  In  an  age  fed  like 
our  own  upon  the  fruits  of  the  imagination  under  the  names 
of  history,  science,  and  theology,  as  well  as  of  poetry  and 
romance,  it  is  no  wonder  that  such  liars  should  be  numerous, 
and  that  comparatively  few  persons  can  tell  a  plain,  straight- 
forward story,  every  assertion  and  description  of  which  will 
be  strictly  true. 

§  241.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness  :  Untruthfulness :  Innocent  and 
Careless  Liars. 
But  whatever  leniency  may  be  extended  to  these  pro- 
clivities of  innocent  or  careless  liars  in  ordinary  life,  none 
can  be  shown  to  them  in  the  investigations  of  a  court  of 
justice.  Men  who  are  sworn  to  tell  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  in  order  that  upon  their 
statements  issues  involving  human  rights  and  liabilities  may 
be  determined,  cannot  be  permitted  to  indulge  in  these 
vagaries,  even  although  they  have  no  consciousness  of  evil. 
On  this  point  juries  as  well  as  judges  are,  as  they  ought  to  be, 
extremely  sensitive.  A  wilful  and  malicious  perjurer  scarcely 
meets  a  surer  or  a  swifter  repudiation  at  their  hands  than 
does  the  undesigning  liar.  If  no  one  else  realizes  the  neces- 
sity of  exact  fidelity  to  truth,  those  whose  correct  discharge 
of  duty  is  to  depend  upon  the  correspondence  of  the  evi- 
dence with  facts  are  certain  to  appreciate  it.  and  to  demand 
in  every  witness  an  integrity  on  which  they  can  implicitly 
rely.  The  cross-examiner  will  find  it  no  prolonged  or  ardu- 
ous labor  to  expose  them.  The  innocent,  imaginative  liar  is 
198 


CROSS-EXAMINATION   OF   WITNESSES.       §  241 

generally  endowed  with  no  remarkable  astuteness,  and,  being 
honest  in  his  intentions,  readily  follows  wherever  a  kindly 
questioner  may  wish  to  lead  him.  Most  of  the  facts  concern- 
ing which  he  testifies  made,  at  the  time  of  their  occurrence, 
no  powerful  impression  on  his  mind,  and  have  not  since 
been  verified  by  personal  examination  or  external  authority. 
When  he  was  called  upon  to  state  them,  at  the  instance  of 
the  adverse  party,  the  natural  desire  to  serve  a  friend  stimu- 
lated his  imagination  as  well  as  his  memory,  and  the  story 
he  related  was  the  net  result  of  fancy  and  recollection. 
The  cross-examiner  may  take  advantage  of  the  same  docility 
in  order  to  exhibit  to  the  jury  his  liability  to  self-deception. 
If  circumstances  which  they  know  did  not  occur,  but  which 
are  in  keeping  with  the  other  parts  of  the  transaction  as  nar- 
rated by  him,  are  now  suggested  to  him,  his  imagination  is 
very  likely  to  insert  them  into  the  picture  which  his  memory 
preserves,  and  he  will  express  his  certainty  of  their  existence 
with  as  much  positiveness  as  that  of  any  other  matter  to 
which  he  has  testified.  This  process  may  be  indefinitely 
repeated,  until  the  jury  see  that  he  is  willing  to  adopt  and 
swear  to  any  details  which  are  not  manifestly  improbable, 
or  until  his  contradiction  of  other  witnesses,  or  of  former 
portions  of  his  own  evidence,  destroys  their  faith  in  his 
intelligence  or  honesty.  An  alternative,  or  sometimes  an 
additional,  mode  of  cross-examining  this  witness  is  to  com- 
pel him  to  narrate  the  transaction  piecemeal,  beginning  in 
the  middle  of  its  history  and  skipping  from  one  portion 
to  another,  reversing  or  confusing  its  chronological  order. 
Variations  and  omissions  will  probably  result,  which,  if  not 
significant  enough  to  discredit  the  witness,  can  be  so  easily 
magnified  by  the  suggestions  of  the  cross -examiner  as  to 
make  it  evident  to  all  beholders  that  the  witness  has  no 
actual  knowledge  or  convictions  of  his  own,  but  simply 
reflects  impressions  created  by  his  fancy  from  within,  or 
by  the   promptings   of  his  questioner  from  without.     The 

199 


§  241  FORENSIC    ORATORY. 

exposure  of  the  careless  liar  is  a  work  of  little  difficulty. 
The  cross-examiner  needs  but  to  apply  the  goad,  and  give 
him  rein.  The  same  qualities  which  mislead  him  in  his 
statements  in  regard  to  one  event  operate  on  all  the  occur- 
rences of  life,  and  in  his  mouth  "  a  little  one  "  always 
"becomes  a  thousand,"  and  "two  roistering  youths"  de- 
velop into  "  eleven  men  in  buckram  "  and  "  three  in  Kendal 
green."  Let  fitting  incidents,  whose  details  are  already 
accurately  before  the  jury,  be  but  presented  to  him  for 
description,  and  his  palpable  additions  and  exaggerations 
will  complete  his  ruin. 

§  242.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness  :  Untruthfulness :  Wilful  Liars : 
When  to  Cross-Examine. 
The  wilful  liar,  though  probably  a  rare  phenomenon,  some- 
times appears  within  our  courts,  and  when  he  does  appear 
generally  eludes  or  baffles  all  the  artifices  of  the  cross-exam- 
iner. Whether  a  witness  of  this  character  should  be  cross- 
examined  at  all,  save  in  a  few  unessential  points  in  order  to 
distract  the  attention  of  the  jury  from  his  former  testimony, 
or  upon  matters  which,  as  he  states  them,  will  make  impres- 
sions favorable  to  the  cause  of  the  cross-examiner,  is  a  ques- 
tion that  always  merits  careful  consideration.  He  is  known 
to  be  an  active  and  aggressive  enemy ;  one  who  is  willing  to 
sacrifice  justice  and  conscience  for  the  sake  of  gratifying 
his  hostility,  and  who  will  probably  avail  himself  of  every 
opportunity  to  inflict  further  injury  by  even  more  atrocious 
falsehood.  An  encounter  with  such  an  enemy  upon  any 
important  matter  should,  if  possible,  be  avoided.  Where  his 
testimony  covers  no  subject  which  is  not  embraced  within 
the  evidence  given  by  other  witnesses  upon  whom  the 
resources  of  cross-examination  may  be  more  hopefully 
expended,  or  where  he  can  be  openly  contradicted  or  im- 
peached, it  is  the  wiser  policy  to  dismiss  him  without  afford- 
2CO 


CROSS-EXAMINATION   OF   WITNESSES.      §  244 

ing  him  a  chance  to  increase  the  mischief  which  he  has 
already  done.  But  where  he  is  the  sole  witness  who  testifies 
to  a  material  fact  which,  unless  he  is  discredited  on  cross- 
examination,  the  jury  will  believe  to  the  great  damage,  if  not 
the  destruction,  of  the  cross-examiner,  the  latter  has  no  alter- 
native but  to  attack  the  witness,  and  endeavor  to  expose  him 
by  his  own  words  and  manner  as  the  wanton  and  conscious 
liar  that  he  is. 

§  243.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness  :  Untruthfulness :  Wilful  Liars  : 
Modes  of  Cross-Examining. 
An  open  attack  upon  a  wilful  liar  in  order  to  compel  him 
to  confess  his  voluntary  falsehood  is  nearly  always  useless,  at 
least  until  he  has  been  driven  to  the  wall  by  a  superior  foe, 
or  has  been  reduced  to  such  a  state  of  mental  confusion  that 
he  is  willing  to  admit  whatever  the  victorious  cross-examiner 
may  see  fit  to  demand.  His  willingness  to  lie  may  with 
more  ease  and  certainty  be  shown  by  unveiling  the  evil 
motives  which  impel  him,  or  by  entangling  him  in  incon- 
sistencies and  contradictions  which  render  it  impossible  to 
accept  any  of  his  statements  as  worthy  of  belief.  Which  of 
these  methods  the  cross-examination  shall  pursue,  or  whether 
more  than  one  shall  be  adopted,  must  be  determined  by  the 
advocate  in  view  of  the  mental  and  moral  constitution  of  the 
witness,  and  the  nature  of  the  false  testimony  which  he  has 
already  given. 

§  244.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness  :  Untruthfulness :  Wilful  Liars  : 
Exposure  of  Evil  Motives. 

A  wilful  liar  is  always  animated  by  a  definite  purpose.  He 
has  some  object  to  accomplish  which  he  deems  important, 
and  which  in  his  opinion  will  be  furthered  by  his  falsehood. 
All  his  inventions  and  suppressions  are  thus  instigated  by  a 

201 


§  244  FORENSIC    ORATORY. 

motive  strong  enough  to  overcome  his  natural  regard  for 
truth,  and  in  obedience  to  which  he  sacrifices  self-respect, 
and  imperils  both  his  honor  and  his  safety.  If  he  can  be 
compelled  to  indicate  this  object  in  such  a  manner  that  his 
interest  in  it,  and  its  connection  with  his  evidence,  are  clearly 
seen,  his  motive  to  deceive  will  be  apparent,  and  the  jury, 
knowing  well  that  whenever  motive  and  ability  concur  the 
act  will  follow,  and  recognizing  that  the  impossibility  of  con- 
tradiction gives  him  an  unlimited  ability  to  lie,  will  soon 
withdraw  from  him  whatever  confidence  they  had  before 
bestowed.  In  this  method  of  attacking  a  false  witness  two 
lines  of  inquiry  become  important :  first,  as  to  the  existence 
of  the  motive ;  and  second,  as  to  the  extent  to  which  his 
will  is  under  its  control.  Direct  questions  upon  these  points 
should,  of  course,  never  be  propounded.  No  witness  who  is 
not  a  party  will  acknowledge  that  in  testifying  he  is  serving 
his  own  private  ends,  and  even  a  party  will  deny  that  he  is 
so  far  interested  in  the  "cause  that  he  would  lie  to  further  it. 
The  advocate  must  disclose  the  motive  by  eliciting  from  him 
the  facts  from  which  the  motive  springs,  and  must  mani- 
fest its  strength  either  by  exhibiting  it  in  actual  operation,  or 
by  aiding  the  jury  to  apply  their  own  knowledge  of  human 
nature  to  the  estimation  of  its  force. 

§  245.    Cross-Examination  :  Exposure  of  the  Unreliability 

of  the  Witness  :  Untruthfulness  ;   Wilful  Liars : 

Exposure  of  Evil  Motives. 

The  motives  which  impel  a  witness  to  suppress  truth  or  to 

utter  falsehood  arise  either  out  of  his  relations  to  the  persons 

connected  with  the  cause,  or  out  of  his  interest  in  the  issues 

or  the  judgment  of  the  cause  itself.     Few  witnesses  are  so 

indifferent  both  to  the  persons  and  to  the  controversy  as  to 

be  beyond  the  influence  of  any  motive  to  deceive.     Even  so 

slight  an  act  as  the  acceptance  of  a  witness  fee,  or  a  mere 

voluntary  appearance  on  the  stand,  often  commits  the  wit- 

202 


CROSS-EXAMINATION   OF   WITNESSES.      §  246 

ness  to  the  party  who  has  called  him,  and  develops  in  his 
mind  a  prejudice  against  the  other  side.  To  such  infirmi- 
ties all  human  evidence  is  subject,  and  the  jury  are  expected 
to  realize  them,  and  to  make  allowance  for  them,  without 
other  assistance  from  the  advocate  than  is  afforded  by  his 
argument.  Those  intimate  and  permanent  relations  which 
constitute  our  social  and  domestic  life  give  rise,  however,  to 
motives  of  a  graver  character  and  more  disastrous  influence. 
A  witness  who,  by  ties  of  blood  or  marriage,  is  connected 
with  the  party  in  whose  interest  he  is  called,  or  who  is 
united  with  him  in  some  business  or  religious  enterprise,  or 
has  shared  with  him  in  the  profits  and  the  burdens  of  politi- 
cal or  criminal  achievement,  or  who  in  any  manner  or  degree 
is  controlled  by  him  in  property  or  freedom,  or  on  account  of 
past  or  promised  favors  has  incurred  obligations  toward  him, 
labors  under  strong  temptations  to  uphold  and  vindicate  him, 
even  at  the  expense  of  truth.  Similar  relations  between  the 
witness  and  another  witness  whose  testimony  needs  cor- 
roboration by  his  own,  or  between  him  and  the  counsel  who 
conducts  the  cause  and  whose  success  depends  to  some 
extent  upon  his  evidence,  engender  the  same  motives,  less 
intense  perhaps,  but  leading  often  to  the  same  calamitous 
result. 

§  246.    Cross-Examination  :  Exposure  of  the  Unreliability 
of  the   Witness :  Untruthfulness :   Wilful   Liars  : 
Exposure  of  Evil  Motives. 
Another  motive  to  falsehood  may  be  found  in  the  hostility 
of  the  witness  toward  persons  who  are  adversely  interested  in 
the   cause.     The  object  of  his  animosity  may  be  the  party 
whose  rights  he  now  maliciously  endeavors  to  destroy,  or  it 
may  be  another  witness  on  whom  the  perjurer  is  striving  to 
heap  odium  and  disgrace,  or  it  may  be  the  advocate  himself, 
now  made  the  victim  of  some  long  hidden  and  on  that  ac- 
count more  bitter  grudge  ;  but  whoever  it  may  be,  if  such 

203 


§  246  FORENSIC   ORATORY. 

hostility  exists,  it  is  almost  as  sure  to  manifest  itself  as  light- 
ning to  escape  the  surcharged  cloud.  Good  will  and  favor, 
interest,  solicitude,  may  be  successfully  concealed,  however 
strong  the  influence  they  exercise  upon  the  mind,  but  it  is 
the  attribute  of  evil  passions  to  obscure  the  perceptions  and 
pervert  the  judgment,  and  thus  to  lead  their  miserable  sub- 
ject to  betray  himself,  even  while  he  considers  his  disguise 
the  most  secure.  For  this  reason,  the  jury  are  not  often  left 
to  ascertain  the  disposition  of  this  witness  by  inferring  it  from 
other  facts  elicited  on  cross-examination.  His  manner, 
language,  features,  all  proclaim  it.  The  advocate  has  but  to 
name  approvingly  the  objects  of  his  hatred,  to  offer  him  their 
conduct  or  their  statements  as  a  standard  by  which  to  guide 
or  estimate  his  own,  and  his  contemptuous  or  abusive  answers 
will  reveal  his  cherished  enmity  more  clearly  than  the  most 
calm  and  positive  assertion.  Against  a  hostile  witness  whose 
deadly  venom  hides  itself  beneath  an  open  and  ingenuous 
smile,  and  whom  no  cruel  glitter  in  the  eye,  no  sharp  inflec- 
tion in  the  voice,  no  dexterous  use  of  treacherous  words,  con- 
fesses as  a  foe,  the  advocate  must  employ  weapons  of  the 
same  character  as  against  those  whose  falsehood  springs  from 
favor  for  his  adversary  ;  and  by  disclosing  personal  or  family 
feuds,  or  social  or  religious  or  political  antagonisms,  or  other 
forms  of  purchased  or  legitimate  hostility,  supply  the  jury 
with  the  facts  from  which  his  motive  to  suppress  or  to  per- 
vert the  truth  may  be  concluded. 

§  247     Cross -Examination:  Exposure  of  the  Unreliability 
of  the   Witness :  Untruthfulness :   "Wilful   Liars  : 
Exposure  of  Evil  Motives. 
The  interest  of  a  witness  in  the  cause  itself,  as  distinguished 
from  the  persons  actually  connected  with  it,  assumes  innu- 
merable forms.     Besides  the  direct  gain  or  loss  which  may 
result  from  its  decision,  its  indirect  effect  upon  him  by  reliev- 
ing him  from  liabilities,  by  settling  questions  which  in  future 
204 


CROSS-EXAMINATION   OF  WITNESSES.      §  248 

cases  will  bear  directly  on  his  property  or  person,  by  influen- 
cing the  minds  of  other  individuals  in  a  direction  favorable 
to  his  wishes,  by  fulfilling  his  predictions,  by  determining  a 
wager  he  has  staked  upon  the  issue,  or  by  any  other  method 
which  flatters  his  vanity,  modifies  his  dominion  over  others, 
or  increases  or  diminishes  his  social  or  business  prosperity, 
produces  motives  toward  truth  or  falsehood  even  stronger 
than  his  love  or  hatred  for  his  fellow  men.  Some  of  these 
forms  of  interest  were  anciently  regarded  by  the  law  as  so 
certain  to  eventuate  in  perjury  that  the  interested  person  was 
forbidden  to  become  a  witness,  and  though  these  disabilities 
are  now  nearly  all  removed,  and  the  jury  are  permitted  to 
determine  how  far  the  interest  of  the  witness  is  likely  to  affect 
his  credibility,  yet  this  removal  of  the  legal  incapacity  was 
not  intended  to,  and  does  not,  clothe  the  witness  with  any 
presumption  of  reliability,  nor  relieve  him  from  the  suspicion 
or  the  unbelief  which  his  relation  to  the  cause  provokes. 

§  248.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  "Witness  ;  Untruthfulness  :  Wilful  Liars : 
Exposure  of  Evil  Motives. 
In  the  endeavor  to  disclose  the  facts  from  which  these 
various  motives  are  to  be  inferred,  the  cross-examiner  is 
liable  to  meet  with  opposition  both  from  the  witness  and  the 
court.  Some  of  these  personal  relations  and  these  forms  of 
interest  are  necessarily  so  widely  known  that  the  witness  will 
not  venture  to  deny  them ;  and  their  influence  in  producing 
motives  to  deceive  is  so  apparent  that  the  court  will  never 
hinder  their  complete  investigation.  In  reference  to  these, 
therefore,  direct  and  open  questions  may  be  freely  asked, 
care  being  taken  not  to  lead  the  witness,  by  insinuating  that 
they  are  impelling  him  to  falsehood,  into  a  protest  that  in 
spite  of  these  he  would  not  lie.  But  many  other  interests 
and  relations  are  known  only  to  the  witness  and  to  his  famil- 
iar friends,  and  hence  he  may  disclaim  them  with  impunity ; 

205 


§  248  FORENSIC    ORATORY. 

or  their  effect  in  generating  motives  to  deceive  may  be  so 
doubtful  or  remote  that,  in  its  dread  of  entering  on  collateral 
matters  or  its  desire  for  expedition,  the  court  will  instantly 
prohibit  the  inquiry,  although  the  jury  and  the  advocate  re- 
gard the  fact  as  highly  prejudicial  to  the  witness.  These 
facts  must  be  elicited  by  indirect  and  incidental  methods,  by 
broad  questions  having  apparently  another  purpose  but  so 
constructed  as  to  compel  the  witness  in  his  answer  to  reveal 
the  fact  desired,  as  one  of  the  details  of  transactions  or  events 
to  whose  narration  he  attaches  no  importance,  and  the  court 
makes  no  objection. 


§  249.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness :  Untruthfulness :  Wilful  Liars  : 
Exposure  of  Evil  Motives. 
The  existence  of  a  motive  to  deceive  having  been  thus  es- 
tablished, the  advocate  should  now,  if  possible,  exhibit  it  in 
actual  operation,  in  order  that  its  influence  upon  the  witness 
may  be  clearly  manifested  to  the  jury.  For  this  purpose  he 
should  confine  his  future  inquiries  to  subjects  which  arouse 
and  stimulate  this  motive,  and  should  present  these  subjects 
to  the  witness  in  such  aspects  as  will  provoke  it  and  display 
it  in  the  highest  possible  degree.  Each  succeeding  question 
should  make  a  stronger  demand  upon  it  than  ihe  last,  and 
require  from  him  a  greater  sacrifice  of  his  regard  for  truth. 
The  absurd  and  evident  falsehoods  into  which  the  witness 
may  thus,  step  by  step,  be  led,  would  stagger  even  the  bold- 
est liar  if  in  cold  blood  or  all  at  once  they  were  proposed  to 
him ;  and  the  impression  made  upon  the  jury,  that  he  will 
stick  at  nothing  in  obedience  to  his  friendship  or  hostility 
or  interest,  soon  becomes  so  powerful  that  no  evidence  or 
argument  is  able  to  efface  it.  But  caution  must  be  exercised 
not  to  urge  him  on  too  swiftly,  nor  to  overstrain  his  willing- 
ness to  lie.  One  palpable  refusal  to  obey  his  motive,  from  an 
206 


CROSS-EXAMINATION   OF   WITNESSES.       §250 

apparent  fealty  to  the  truth,  will  be  sufficient  to.  demonstrate 
the  supremacy  of  conscience,  and  to  counteract  whatever 
bad  impression  may  have  been  already  made.  With  this  ex- 
ception, this  form  of  cross-examination  is  attended  with  no 
especial  danger,  since  no  new  matter  need  be  introduced, 
while  what  the  witness  has  already  stated  cannot  be  contra- 
dicted, and  will,  therefore,  be  believed  unless  his  credibility 
is  overthrown. 


§  250.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness  ;  Untruthfulness  :  Wilful  Liars  ; 
Self-Contradictions. 
Another  mode  of  cross-examining  the  wilful  liar,  which 
can  be  employed  either  as  a  substitute  for  or  in  addition  to 
the  foregoing  as  circumstances  may  indicate,  consists  of  an 
attempt  to  involve  him  in  such  inconsistent  statements  that 
reliance  on  his  truthfulness  will  be  impossible.  Where  the 
witness  is  of  a  bold  and  zealous  disposition,  if  the  cross-ex- 
aminer assumes  toward  him  a  mild  and  deferential  manner, 
he  will  fearlessly  endeavor  to  reply  to  any  inquiry  that  may 
be  propounded  to  him.  Upon  the  points  to  which  he  has 
already  testified  he  is  probably  so  well  prepared  as  to  be  able, 
under  any  questioning,  to  repeat  and  explain  all  their  imme- 
diate details.  Any  attempt  to  make  him  contradict  himself 
concerning  these  is,  therefore,  quite  unlikely  to  succeed. 
But  it  is  often  possible,  by  adroit  questions  on  collateral 
topics,  to  lead  him  into  statements  whose  incompatibility 
with  what  he  has  previously  declared  is  either  at  once  appar- 
ent to  the  jury,  or  can  be  made  so  by  the  future  argument. 
All  facts  are  so  related  to  each  other  that  every  truth  must 
harmonize  with  every  other  truth,  and  every  falsehood  con- 
tradict not  only  some  particular  truth,  but  every  other  truth 
whose  existence  is  conditioned  on  or  interwoven  with  the  one 
denied.     The  testimony  of  a  perjurer  is  thus  surrounded  on 

207 


§  250  FORENSIC   ORATORY. 

all  sides  by  facts  which  overthrow  it,  and  the  great  problem 
of  the  cross-examiner  is  how  to  extract  from  his  own  lips 
those  truths  by  which  his  falsehood  may  be  swept  away. 
In  attempting  this  circuitous  attack  the  advocate  should 
carefully  conceal  everything  that  might  lead  the  witness  to 
imagine  that  his  falsehood  is  suspected.  It  is  impossible  for 
him  to  have  prepared  himself  on  every  topic  that  may  be 
connected  with  his  evidence,  and  upon  such  as  he  has  not 
prepared  he  will  reveal  the  truth  unless  suspicious  that  they 
tend  to  contradict  him.  His  attention  should  be  first  called 
to  his  former  testimony,  and  its  essential  facts  should  be  re- 
peated. Then,  diverging  to  the  selected  topic,  he  should  be 
led  away  from  the  material  parts  of  the  transaction  and  care- 
fully interrogated  concerning  matters  not  apparently  related 
to  his  former  statements,  yet  so  associated  with  them  as  to 
serve  as  tests  of  truth.  No  line  of  collateral  inquiry,  how- 
ever insignificant,  is  unworthy  of  this  kind  of  exploration. 
The  most  trivial  event  may  demand  for  its  occurrence  those 
conditions  which  could  not  have  coexisted  with  the  facts  as 
stated  by  the  witness,  and  thus  may  demonstrate  the  falsity 
of  his  assertions.  This  mode  of  cross-examination,  more 
than  any  other,  requires  exhaustless  patience.  Experiment 
after  experiment  may  be  tried  and  fail,  and  success  at  last 
elude  the  most  persistent  efforts.  But  if  the  questioning  be 
skilfully  conducted  the  worst  result  is  that  the  testimony  of 
the  witness  remains  undisturbed,  -neither  corroborated  nor 
intensified  because  no  portion  of  his  principal  narration  has 
been  taken  as  the  subject  of  the  inquiry ;  while  if  it  be  suc- 
cessful, unless  the  advocate  through  an  insanity  begotten  of 
his  triumph  casts  away  the  fruits  of  victory,  and  destroys  all 
future  possibility  of  conquering  the  witness,  by  exposing  to 
him  his  own  inconsistency  and  giving  him  an  opportunity  to 
reconcile  it,  his  overthrow  will  be  complete,  and  his  value  as 
a  witness  will  be  totally  extinguished. 


208 


CROSS-EXAMINATION   OF   WITNESSES.      §  25 1 

§  251.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness  >  Untruthfulness  :  Wilful  Liars  ■ 
Self-Contradictions. 
With  a  lying  witness  of  a  timid  and  suspicious  disposition 
this  artful  mode  of  cross-examination  will  not  avail.  He  sees 
a  snare  in  every  question,  however  innocent  and  trivial  it 
may  be,  and  when  he  lies  most  stoutly  trembles  most  with 
apprehensions  of  discovery.  He  usually  knows  nothing 
about  any  subject  save  the  one  to  which  he  testifies,  and 
nothing  about  that  except  the  story  he  has  learned.  His 
chief  endeavor  is  not  to  commit  himself  to  anything  beyond 
the  statement  he  has  been  employed  to  make.  To  ques- 
tions which  directly  touch  that,  he  is  therefore  ready  with 
his  answer ;  to  every  other  inquiry  he  replies  that  he  did  not 
take  notice  or  does  not  remember.  It  is  useless  for  the 
advocate  to  conceal  his  opinion  of  this  witness.  He  per- 
ceives already  that  he  is  mistrusted,  and  the  manner  of  the 
cross-examiner  should  show  him  not  only  that  his  falsehood 
is  suspected,  but  that  it  is  fully  known.  Circumlocution  here 
is  needless.  The  advocate,  fixing  his  eye  upon  that  of  the 
witness,  standing  as  near  him  as  convenient,  and  always,  if 
possible,  looking  down  upon  him,  should  go  straight  to  his 
object ;  command  him  to  repeat  his  story,  and  permit  him  to 
attempt  it,  undisturbed  by  interrogatory  or  interruption.  It 
well  may  happen  that,  in  the  discomposure  of  the  moment, 
he  will  relate  it  so  differently  as  to  stamp  him  as  a  liar  in  the 
estimation  of  every  one  who  hears  him.  If  this  be  so,  the 
cross-examination  should  terminate  at  once,  giving  him  no 
time  to  recover  himself  and  no  opportunity  to  explain  his 
contradictions.  Should  this  ordeal  be  successfully  endured, 
another  method  of  attack  may  be  adopted.  The  witness 
may  be  questioned  in  regard  to  such  details  of  the  transac- 
tion as  he  has  not  already  stated,  and  in  reference  to  which 
it  is  unlikely  that  he  has  prepared  himself.  The  answers 
which  he  gives,  if  any,  will  probably  be  invented  by  him  on 

14  209 


§  25  I  FORENSIC    ORATORY. 

the  spur  of  the  moment  with  the  intention  of  supporting 
what  he  has  already  said,  and  should  be  carefully  observed 
and  noted  down.  The  inquiry  should  then  run  off  into  unim- 
portant matters,  and  while  the  mind  of  the  witness  is  thus 
diverted  the  questions  to  which  these  invented  answers  have 
been  given  should  be  again  suddenly  and  rapidly  pro- 
pounded. The  witness,  having  no  chance  to  recall  the  an- 
swers which  he  previously  made,  will  now  invent  again,  with 
every  probability  of  involving  himself  in  fatal  contradictions. 
Another  method  of  attacking  such  a  witness  is  to  take  his 
story  as  he  has  already  told  it,  and,  beginning  where  he  left 
off  in  the  direct,  to  lead  him  backwards  through  it,  skipping 
from  point  to  point  to  break  the  chain  of  association  in  his 
mind,  giving  him  no  time  to  invent  or  to  reflect  upon  the 
consequences  of  his  answers,  fixing  him  to  dates,  places, 
names,  and  order  of  events,  and  then,  after  a  kw  moments 
of  diversion  to  foreign  matters,  to  return  to  these  details  and 
go  over  them  again.  It  is  scarcely  possible  for  a  lying  wit- 
ness so  to  prepare  or  guard  himself  that  in  one  or  other  of 
these  methods  the  falsehood  of  his  evidence  may  not  be 
demonstrated. 

§  252.  Cross-Examination  :  Exposure  of  the  Unreliability 
of  the  Witness  ■  Untruthfulness  :  Wilful  Liars  : 
Contradiction  of  other  Witnesses. 

Again,  the  cross-examiner  may  attack  a  wilful  liar  by  at- 
tempting to  involve  him  in  contradictions  with  other  wit- 
nesses whose  credibility  is  above  suspicion.  The  points  of 
inquiry  selected  for  this  purpose  must  be  related  to  the 
cause,  and  either  conclusively  established  by  evidence  al- 
ready offered,  or  capable  of  being  proved  by  that  which  is 
about  to  be  produced.  They  must  also  be  such  as  the  wit- 
ness clearly  knows,  or  clearly  knows  that  he  does  not  know  ; 
for  the  contradiction  sought  is  one  that  demonstrates  the 
liar's  evil  will,  and  therefore  has  no  reference  to  matters  of 
2IO 


CROSS-EXAMINATION   OF  WITNESSES.      §  253 

opinion,  about  which  upright  witnesses  may  widely  differ,  nor 
to  long  past  sensations  into  which  errors  of  memory  or  per- 
ception may  have  innocently  entered.  On  any  of  these 
points  the  cross-examiner  may  test  the  witness  by  questions 
which  do  not  disclose  their  actual  purpose,  in  the  hope  that 
he  will  make  some  statement  by  which  his  disposition  to  per- 
vert the  truth  will  be  revealed.  A  single  instance  of  wilful 
falsehood  will  be  sufficient  to  destroy  him.  The  maxim, 
0  Falsum  in  uno,  falsum  in  omnibus,"  expresses  not  merely 
a  rule  of  law,  but  the  natural  instinct  of  all  honest  men,  who 
will  unhesitatingly  repudiate  a  witness  when  once  his  volun- 
tary untruthfulness  appears. 

§  253.    Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness:  Bad  Character. 

The  credibility  of  a  witness  is  scarcely  less  affected  by  the 
opinion  which  the  jury  may  entertain  concerning  his  personal 
character,  than  by  their  knowledge  of  the  accuracy  of  his  in- 
tellectual operations  or  his  truthfulness.  In  every  community 
there  are  many  individuals  whose  statements  upon  any  sub- 
ject are  accepted  and  believed,  without  an  inquiry  as  to  their 
powers  of  expression,  memory,  or  perception,  simply  on  the 
faith  engendered  by  their  known  integrity  and  wisdom ;  and 
few  are  the  communities  in  which  there  are  not  some  whom 
nobody  believes,  except  when  they  confess  themselves  most 
miserable  sinners.  This  natural  tendency  to  regard  the  word 
of  the  industrious,  law-abiding  citizen  as  true,  and  to  doubt 
the  veracity  of  the  idle,  dissolute,  and  shiftless,  affects  the 
jury  in  the  court-room  equally  with  persons  in  ordinary  life  ; 
and  hence  to  expose  the  adverse  witness  to  them  as  a  man 
of  evil  inclinations,  immoral  habits,  and  disreputable  associa- 
tions is  to  arouse  against  him  suspicions  of  unreliability  which 
diminish,  and  sometimes  remove,  whatever  good  impressions 
his  testimony  may  have  made.  The  law  of  evidence  indeed 
places  limitations  to  this  species  of  investigation,  in  order  to 

211 


§  253  FORENSIC   ORATORY. 

prevent  the  raising  of  side  issues,  and  to  protect  a  witness 
of  present  upright  character  from  an  unnecessary  publication 
of  his  ancient  faults.  But  the  remaining  field  is  wide  enough 
for  all  the  purposes  of  the  cross-examiner;  and  when  he 
chances  to  exceed  it,  since  the  witness  only  can  object  to  his 
inquiries  and  can  decline  to  answer  only  on  the  ground  that 
his  reply  would  criminate  or  disgrace  himself,  his  silence  is 
as  serviceable  as  his  speech.  The  real  point  of  inquiry,  how- 
ever, is  the  reliability  of  the  witness  as  he  now  stands  in 
court  giving  his  testimony,  not  whether  he  could  have  been 
relied  on  years  ago  if  he  had  then  been  offered  as  a  witness ; 
for  it  is  as  certain  that  the  liar  may  become  a  truthful  man  as 
that  the  truthful  man  may  become  a  liar,  although  the  latter 
process  is  more  easy  than  the  former,  and  what  the  witness 
was  is  thus  of  slight  significance  upon  the  question  as  to  what 
he  is.  If  the  cross-examiner  confines  himself  to  this  point,  he 
will  find  material  sufficient  for  all  legitimate  uses  in  the  pres- 
ent employments,  pleasures,  and  companionships  of  the  wit- 
ness ;  and  these  can  be  exhibited  to  the  jury,  if  not  by  direct 
inquiries,  by  general  interrogatories  into  whose  answers  these 
facts  will  be  interwoven  by  the  witness.  This  mode  of  cross- 
examination  is  frequently  advisable,  especially  in  our  own 
day,  when  so  large  a  proportion  of  witnesses,  particularly  in 
criminal  cases,  are  open  to  suspicion  on  account  of  their 
habitual  depravity  of  mind  and  conduct ;  and  rarely  is  it 
fraught  with  danger  to  the  cross-examiner,  since,  if  the  at- 
tempt at  an  exposure  of  the  witness  fails,  it  does  not  add  to  the 
impression  made  by  his  direct  examination,  unless  it  has  been 
so  conducted  as  to  appear  a  wanton  aspersion  of  the  witness, 
and  has  thus  aroused  for  him  the  sympathy  of  the  jury.  But 
where  the  testimony  which  the  witness  has  already  given  is 
correct,  and  to  the  cross-examiner  is  known  to  be  so,  and  the 
witness  in  delivering  it  has  unquestionably  endeavored  to  be 
honest  and  impartial,  it  is  a  violation  of  both  truth  and  jus- 
tice for  the  cross-examiner  to  lift  against  him  this  weapon  of 
212 


CROSS-EXAMINATION   OF  WITNESSES.       §  254 

attack,  which  is  intended  for  the  overthrow  of  falsehood  and 
the  detection  and  destruction  of  the  wilful  perjurer. 

§  254.  Cross-Examination :  Exposure  of  the  Unreliability 
of  the  Witness:  Impeachment. 
A  process  having  the  same  object  as  the  foregoing  mode 
of  cross-examination  is  the  impeachment  of  the  witness,  and 
although  its  method  is  entirely  different  from  that  of  cross- 
examination,  this  similarity  of  purpose  renders  its  discussion 
in  this  place  appropriate.  Impeachment  consists  in  showing 
that  the  reputation  of  the  witness  for  veracity,  among  those 
who  know  him  best,  is  not  equal  to  that  of  men  in  general. 
Where  this  can  be  clearly  proved,  it  of  course  destroys  the 
force  of  his  evidence,  and  the  confidence  with  which  the  jury 
might  otherwise  have  regarded  him,  and  also  reflects  discredit 
on  the  parties  who  have  called  him.  But  the  difficulties 
which  attend  this  proceeding  are  very  great.  Few  persons 
are  willing  to  appear  in  court  to  sustain  such  an  accusation 
against  a  neighbor,  and  if  they  do  appear  their  testimony  is 
likely  to  be  given  in  such  mild  and  diluted  phraseology  as  to 
deprive  it  of  its  value.  Even  when  their  testimony  is  direct 
and  positive,  a  skilful  cross-examination  usually  reveals  the 
fact  that  the  impeaching  witness  is  hostile  to  the  impeached  ; 
a  fact  which  naturally  weakens  the  effect  of  his  evidence,  al- 
though his  hostility  is  the  result  of  injuries  inflicted  upon  him 
by  the  witness  whom  he  now  attacks.  Moreover,  almost 
every  man,  however  infamous,  has  adherents  whose  testimony 
to  his  credibility  will  be  given  promptly  and  vigorously,  and 
without  the  appearance  of  hostility  or  bias  which  attaches  to 
the  evidence  of  the  impeaching  witness.  And  finally,  as  the 
impeachment  of  a  witness  involves  the  allegation  that  he  not 
only  has  committed  perjury,  but  possesses  an  habitual  dis- 
position to  commit  it,  the  impeacher  must  encounter  all 
those  humane  instincts  in  the  minds  of  the  jury  which  lead 
them  to  believe  every  witness  to  be  honest  in  his  general 

213 


§  254  FORENSIC   ORATORY. 

intentions,  although  in  special  cases  he  may  be  misled  by 
prejudice  or  error.  These  difficulties  render  such  attacks 
upon  a  witness  exceedingly  hazardous,  since  when  unsuccess- 
ful they  recoil  with  terrible  effect  upon  the  head  of  him  who 
makes  them.  For  this  reason,  they  should  never  be  attempted 
unless  success  is  certain. 


§  255.    Cross-Examination :  Counterbalancing  the  Impres- 
sions made  by  the  Direct. 

Where  neither  the  witness  nor  his  evidence  can  be  suc- 
cessfully attacked,  and  in  many  cases  where  they  could  be  i 
.the  advocate  desired  to  do  it,  an  effective  mode  of  cross- 
examination  consists  in  eliciting  from  the  witness  testimony 
favorable  to  the  cross-examiner.  This  process  is  to  be  dis- 
tinguished from  that  whereby  the  cross-examiner  makes  him 
his  own  witness,  and  questions  him  concerning  new  matter 
which  could  not  properly  be  made  the  subject  of  the  cross- 
examination,  —  a  practice  often  adopted  from  economic  mo- 
tives, but,  except  in  very  rare  instances,  altogether  contrary 
to  oratorical  rules,  since  it  throws  away  the  opportunity  to 
make  the  strongest  possible  impression  upon  the  jury  by  add- 
ing to  the  number  of  the  witnesses,  and  producing  their  tes- 
timony in  its  proper  order  and  connections.  The  mode  of 
cross-examination  here  described  does  not  attempt  to  intro- 
duce new  matter,  but  by  the  use  of  matter  already  stated  to 
make  an  impression  on  the  jury  in  favor  of  the  cross-examiner, 
as  a  counterbalance  to  the  one  created  by  the  direct  in  favor 
of  his  adversary.  Matter  available  for  this  purpose  is  rarely 
ever  wanting.  It  is  scarcely  possible  for  any  witness  to  tes- 
tify without  disclosing  something  favorable  to  the  other  side. 
Its  nature  and  comparative  importance  are  of  little  conse- 
quence, only  so  it  be  evidently  favorable,  —  even  the  expression 
of  a  doubt  as  to  some  trivial  matter  being  capable  of  acquiring 
great  significance  from  the  earnestness  and  persistency  with 
214 


CROSS-EXAMINATION  OF  WITNESSES.      §  255 

which  the  cross-examiner  interrogates  the  witness  concerning 
it.  The  method  of  conducting  this  inquiry  depends  mainly 
upon  the  personal  character  and  appearance  of  the  witness 
himself.  If  he  is  manifestly  credible,  and  has  already  won 
the  confidence  of  the  jury,  the  cross-examiner  should,  if  pos- 
sible, first  draw  from  him  by  direct  questions  an  assertion 
that  he  has  no  interest  in  the  cause,  and  would  as  willingly 
have  testified  on  behalf  of  one  side  as  the  other,  and  should 
then  call  his  attention  to  the  favorable  matters  just  as  he  has 
stated  them  in  the  direct.  The  witness  will  not  flatly  contra- 
dict himself,  but  will  probably  again  affirm  them  and  by  each 
affirmation  seem  to  be  affording  strong  support  to  the  side  of 
the  cross-examiner ;  while  if  he  qualifies  his  former  language, 
and  thus  renders  these  matters  less  favorable,  he  will  at  once 
arouse  suspicions  in  the  jury  as  to  his  own  honesty  and  truth- 
fulness. \Yhere,  on  the  other  hand,  the  witness  is  of  bad 
appearance  or  is  evidently  hostile,  the  cross-examiner,  with- 
out preliminary  questions,  should  ask  him  whether  he  did  not 
state  such  and  such  matters  on  his  direct  examination.  He 
cannot  deny  them  without  self-contradiction.  He  cannot 
qualify  them  without  impugning  his  own  credibility.  If  he 
admits  them,  they  are  so  many  concessions  in  favor  of  the 
cross-examiner,  apparently  wrung  from  him  against  his  will, 
and  gathering  from  that  fact  an  importance  altogether  beyond 
what  they  intrinsically  possess.  In  pursuing  this  mode  of 
cross-examination,  the  attention  of  the  witness  must  be 
strictly  confined  to  the  favorable  matters  selected  for  that 
purpose  by  the  cross-examiner.  No  questions  should  be 
asked  him  concerning  any  other  portions  of  his  direct  testi- 
mony, nor  should  he  be  permitted  to  repeat  them.  This 
limitation  is  absolutely  necessary  to  the  success  of  the  entire 
experiment,  whose  only  object  it  is  to  present  him  as  a  wit- 
ness favorable  to  the  cross-examiner,  although  by  accident  or 
choice  he  has  enlisted  on  the  other  side. 


21S 


§  256  FORENSIC   ORATORY. 

§  256.  Cross-Examination :  Qualifications  of  the  Cro3S- 
Examiner :  His  Knowledge  of  the  Cause. 
From  this  description  of  the  different  modes  of  cross-exam- 
ination it  is  apparent  that  every  cross-examiner  has  immense 
resources  at  his  command.  Whether  he  is  able  to  employ 
them  is  a  different  matter.  A  good  cross-examiner  must 
possess  certain  personal  qualities.  He  must  have  a  cour- 
ageous disposition,  a  quick  wit,  a  good  command  of  lan- 
guage, and  great  patience.  A  man  of  timid  and  retiring 
temper,  or  who  must  stop  and  think  what  to  do  next  or 
what  to  say,  or  who  becomes  irritated  at  trifles,  is  utterly 
unfit  for  these  encounters,  and  should  never  undertake  them. 
No  contest  between  men,  whether  on  the  athletic  or  the 
martial  field,  demands  more  boldness  and  daring,  greater 
alertness  of  perception  and  swiftness  of  decision,  wider  com- 
mand over  the  weapons  of  attack  and  defence,  or  stronger 
self-control,  than  that  which  in  the  peaceful  forum  is  often 
waged  between  a  witness  and  his  cross-examiner.  But  even 
the  best  of  cross-examiners  is  comparatively  powerless  with- 
out a  thorough  acquaintance  with  the  persons  and  the  things 
which  his  case  involves.  Theoretically,  his  cross-examination 
never  is,  and  practically  it  never  ought  to  be,  a  fishing  pro- 
cess, in  which  he  angles  for  an  unknown  prey.  To  expose 
errors  in  the  testimony,  to  unveil  the  infirmities  and  corrup- 
tion of  witnesses,  to  make  them  advocates  for  his  own  side 
of  the  cause,  he  must  have  known  beforehand  the  facts  to 
which  they  now  inaccurately  or  with  reluctance  testify,  and 
the  personal  characteristics  they  would  now  conceal.  If  in 
his  preparation  of  his  side  of  the  case  he  has  investigated 
both  sides,  probing  all  facts  whether  favorable  to  him  or 
unfavorable,  interviewing  all  witnesses  whether  friendly  or 
hostile,  exploring  all  the  circumstances  which  reveal  the  dis- 
positions and  proclivities  of  persons  and  the  qualities  of 
things,  he  becomes  almost  resistless  in  his  conflict  with  a 
witness,  and  the  good  impressions  made  by  the  direct  exam- 
216 


CROSS-EXAMINATION   OF   WITNESSES.       §  257 

ination,  however  stable  and  conclusive,  are  beaten  out  and 
vanish  underneath  his  blows.  Just  in  proportion  to  his  want 
of  such  a  preparation  is  his  loss  of  power.  Accident  may 
sometimes  reveal  to  him  matters  for  cross-examination,  and 
thus  supply  the  place  of  personal  research,  but,  so  far  from 
encouraging  him  to  further  negligence,  these  fortunate  deliv- 
erances should  earnestly  admonish  him  of  the  disadvantages 
and  dangers  of  a  warrior  who  meets  his  foeman  while  ignorant 
of  his  tactics  and  his  arms. 

§  257.    Cross-Examination :    Manner  of  the    Cross-Exam- 
iner. 

Finally,  the  manner  of  the  cross-examiner  should  be  suited 
to  the  work  in  which  he  is  engaged.  Although  he  is  in  com- 
bat with  the  witness,  yet  it  is  not  a  conflict  of  physical  or 
verbal  forces,  but  of  intellectual  skill  and  moral  energy. 
Moral  and  intellectual  contests  are  not  characterized  by 
rudeness  or  recklessness  of  speech  or  action,  but  by  earnest- 
ness, courtesy,  and  forbearance.  To  denounce  the  witness, 
to  browbeat  and  attempt  to  crush  him,  is  permissible  in  but 
a  single  instance,  and  that  is  where  both  advocate  and  jury 
suspect  him  to  be  a  wilful  liar ;  yet  even  then  the  harshness 
of  the  cross-examiner  must  not  transcend  its  proper  bounds, 
or  his  abuse  and  vilification  of  the  witness  may  change  the 
feelings  of  the  jury  from  sympathy  with  him  into  pity  for  his 
victim.  All  other  witnesses,  under  all  circumstances,  are 
entitled  to  respectful  treatment;  and  when  they  do  not 
receive  it,  the  jury  have  the  power  to  make  the  erring  law- 
yer bear  the  penalty,  and  verdicts  have  been  known  to  turn 
against  a  rough,  insulting  cross -examiner  on  this  account 
alone.  With  that  restriction,  the  cross-examiner  must  accom- 
modate his  manner  to  the  witness  and  the  inquiry.  As  the 
occasion  and  his  purpose  may  demand,  he  must  be  dignified 
or  jocular,  distant  or  deferential,  seductive  or  severe. 


217 


§  258  FORENSIC   ORATORY. 


CHAPTER   XI. 

OF  THE   RE-DIRECT   EXAMINATION. 

§  258.  Duties  of  the  Advocate  during  the  Cross-Exam- 
ination of  his  own  Witnesses:  To  Protect  his 
Witnesses. 
During  the  cross-examination  of  his  own  witnesses  the 
advocate  has  two  important  duties  to  perform.  In  the  first 
place,  he  is  to  guard  his  witnesses,  as  far  as  possible,  from 
such  assaults  as  tend  to  prejudice  his  side  of  the  cause. 
For  this  purpose  he  should  stand  ready  to  assist  them,  when 
too  hardly  pressed  by  the  cross-examiner,  with  such  objec- 
tions and  discussions  as  will  distract  the  attention  of  the 
jury  from  the  witness,  and  afford  him  time  and  opportunity 
to  recover  himself.  Extreme  prudence  is,  however,  neces- 
sary in  the  discharge  of  this  duty.  Under  no  circumstances 
should  he  exhibit  a  desire  to  conceal  anything  from  the  jury, 
and  therefore  he  never  should  object  upon  the  ground  that 
the  matter  which  the  questions  of  the  cross-examiner  are 
calculated  to  elicit  ought  not  to  be  submitted  to  their  con- 
sideration. Nor  should  he  ever  interfere  merely  to  save 
the  feelings  of  the  witness,  if  the  sympathies  of  the  jury  are 
already  enlisted  in  his  favor.  Then  the  more  abusive  and 
venomous  the  cross-examiner  becomes,  the  better  for  the 
advocate,  and  he  should  remain  quiet  until  the  witness 
begins  to  weaken  in  his  evidence,  or  suffers  so  much  that 
the  failure  of  the  advocate  to  rescue  him  is  likely  to  pro- 
voke the  censure  of  the  jury,  when  he  should  interfere  at 
once,  and  turn  the  current  of  the  inquiry  into  another 
channel. 

218 


OF  THE  RE-DIRECT  EXAMINATION.        §  260 

§  259.  Duties  of  the  Advocate  during  the  Cross-Exam- 
ination of  his  own  "Witnesses :  To  Prepare  for 
the  Re-Direct  Examination. 
In  the  second  place,  during  the  cross-examination  of  his 
own  witnesses  it  is  the  duty  of  the  advocate  to  prepare  him- 
self for  the  re-direct  examination.  It  is  the  object  of  the 
re-direct  examination  to  revive  the  good  impressions  made 
by  the  witness  during  the  direct  wherever  they  have  been 
weakened  by  the  cross-examination,  to  add  to  or  intensify 
them  by  the  favorable  disclosures  which  the  cross-examina- 
tion has  produced,  and  to  remove  the  unfavorable  impressions 
which  it  may  have  left  upon  the  jury.  For  this  purpose,  the 
advocate  should  watch  the  countenances  of  the  jury  as  the 
cross-examination  proceeds,  and  note  every  inquiry  or  reply 
which  seems  to  attract  their  attention,  endeavoring  to  realize 
in  himself  the  mode  in  which  it  operates  on  them.  Of  all 
such  matters,  as  well  as  of  all  answers  of  the  witness  which 
require  explanation,  or  which  seem  contradictory,  or  which 
tend  to  discredit  him,  careful  memoranda  should  be  made, 
that  when  the  time  for  re-direct  examination  comes  the 
material  for  it  may  be  at  hand. 

§  260.    Re-Direct  Examination  :  its  Field  and  Limits. 

The  field  of  the  re-direct  examination  is,  in  each  particular 
instance,  measured  by  the  necessities  which  the  preceding 
cross-examination  has  created.  All  its  objects  of  inquiry, 
however,  will  fall  within  the  following  classes  :  (1)  Facts 
tending  to  show  that  the  witness  has  not  erred  by  misde- 
scription, exaggeration,  or  extenuation  in  his  direct  examina- 
tion;  (2)  Facts  tending  to  show  that  he  has  not  adduced 
false  inferences  as  narratives  of  actions  or  events ;  (3)  Facts 
tending  to  show  that  he  has  not  himself  been  mistaken  as  to 
the  facts  which  he  narrated  ;  (4)  Facts  tending  to  confirm 
the  accuracy  of  his  apprehensions,  memory,  and  expressions, 
or  to  remove  any  suspicion  as  to  his  credibility  arising  from 

219 


§  260  FORENSIC   ORATORY. 

his  prejudices  or  interests  or  general  character;  (5)  Facts 
tending  to  reconcile  apparent  contradictions  in  his  testimony ; 
(6)  Facts  tending  to  explain  or  weaken  the  force  of  new  and 
adverse  facts  brought  out  on  the  cross-examination ;  (7)  Facts 
tending  to  explain  and  corroborate  new  and  favorable  facts 
brought  out  on  the  cross-examination.  In  one  or  more  of 
these  lines  of  investigation  the  advocate  will  find  whatever 
may  be  profitable  to  him  for  healing  the  wounds  inflicted  by 
the  cross-examiner,  and  for  turning  to  his  own  advantage  the 
facts  which  were  intended  for  his  injury. 

§  261.    Re-Direct  Examination :   Not  to  be  Omitted. 

Except  in  those  rare  cases  where  the  cross-examination 
has  left  the  good  impressions  made  by  the  direct  entirely 
unimpaired,  and  has  created  no  counter  impression  in  favor 
of  the  cross-examiner,  the  re-direct  examination  should  never 
be  omitted.  It  occupies  the  same  position  in  the  oratorical 
act  performed  by  the  witness  which  the  final  argument  occu- 
pies in  the  series  of  orations  delivered  by  the  advocates  ;  and 
as  no  lawyer  fails  to  appreciate  the  benefits  of  the  "  closing 
turn,"  or  to  avail  himself  of  them  whenever  the  opportunity 
is  offered  him,  so  will  he  never  without  overwhelming  reasons 
forego  the  privilege  of  making  the  last  impression  on  the  jury 
through  the  re-direct  examination.  It  may  consist  merely  of 
a  single  question,  bringing  out  the  strongest  favorable  fact  to 
which  the  witness  testified  on  the  direct,  or  of  a  few  inquiries 
covering  important  points  of  the  same  character  which  have 
been  first  revealed  upon  the  cross ;  but  however  brief  or  lim- 
ited, its  value  is  too  great  to  render  its  neglect,  in  any  ordi- 
nary case,  excusable.  Above  all,  a  witness  never  should  be 
suffered  to  depart  while  confused,  or  irritated,  or  in  any  way 
discredited,  by  the  cross-examination.  By  questioning  him 
concerning  unimportant  portions  of  his  previous  testimony 
his  confusion  may  be  removed  or  his  irritation  calmed,  and 
when  restored  to  himself  the  strong  points  in  his  evidence 
220 


OF  THE  RE-DIRECT  EXAMINATION.         §  262 

may  be  repeated,  thus  enabling  him  to  leave  behind  a  good 
impression.  Facts  which  discredit  him  he  should  be  per- 
mitted to  explain,  qualify,  or  deny ;  or,  if  this  is  impossible, 
the  advocate,  ignoring  all  the  doubts  cast  on  his  character 
or  evidence,  should  recur  to  prominent  parts  of  his  favorable 
testimony,  treating  him  as  the  most  credible  of  witnesses,  and 
by  the  energy  of  the  impression  which  he  thus  makes  on  the 
jury  endeavor  to  efface  the  doubts  and  prejudices  which  they 
had  begun  to  entertain. 

§  262.    Re-Direct  Examination:  Method  of  Conducting. 

The  conduct  of  a  re-direct  examination  concerning  mat- 
ters covered  by  the  direct  follows  the  rules  previously  stated 
in  reference  to  that  stage  of  the  testimony.  To  return  to 
them  in  the  re-direct,  when  they  have  been  made  the  subject 
of  the  cross,  is  not  only  permissible,  but  often  expedient,  in 
order  that  no  doubt  may  exist  as  to  what  the  witness  does 
assert  concerning  them ;  or  they  may  be  employed  for  no 
other  purpose  than  to  afford  the  witness  a  good  exit  from 
the  stand.  But  where  new  and  unfavorable  matter  has  been 
brought  out  on  the  cross  by  way  of  explanation  or  addition 
to  that  given  on  the  direct,  great  caution  in  dealing  with  it 
is  essential  unless  it  is  already  well  known  to  the  advocate. 
Being  his  own  witness,  any  damaging  statement  or  admission 
will  come  with  great  effect  from  him,  and  since  the  cross- 
examiner  has  already  derived  from  such  new  matter  all  the 
advantage  he  can  gain  without  assistance  from  the  advocate, 
the  latter  should  hesitate  to  risk  an  increase  of  the  mischief 
by  any  inquiry  whose  answer  he  does  not  foreknow.  If  the 
witness  is  intelligent,  and  seems  to  wish  to  explain  further,  he 
may  be  allowed  to  do  so  ;  or  if  the  advocate  from  his  general 
knowledge  perceives  that  other  facts,  as  yet  unrelated,  must 
have  existed,  which  will  change  the  aspect  of  affairs  in  his  favor, 
he  may  interrogate  concerning  them  ;  but  otherwise  it  is  often 
the  safer  part  to  let  the  unpalatable  statement  stand  and  trust 

221 


§  262  FORENSIC  ORATORY. 

to  time  and  later  good  impressions  gradually  to  obscure  it. 
Anything  that  savors  of  a  contradiction  of  the  witness  must 
always  be  carefully  avoided.  To  attack  his  general  credibil- 
ity is  equivalent  to  a  confession  on  the  part  of  the  advocate, 
and  on  behalf  of  himself  and  his  client,  either  that  they  have 
been  imposed  upon  by  a  treacherous  witness,  or  that  they 
have  purposely  put  upon  the  stand  a  man  of  untrustworthy 
character  whose  evidence  they  were  willing  that  the  jury 
should  believe  as  long  as  it  was  favorable  to  themselves,  — 
a  confession  which  in  neither  case  does  honor  to  the  advo- 
cate and  in  the  latter  is  quite  certain  to  be  fatal  to  his_cause. 
If  the  witness  has  unexpectedly  disclosed  upon  his  cross- 
examination  matters  injurious  to  the  advocate  who  called 
him,  and  such  matter  cannot  be  explained  or  qualified  by 
him,  it  should  await  its  contradiction  or  extenuation  by  the 
evidence  of  other  witnesses,  while  in  the  re-direct  the  ad- 
vocate concerns  himself  with  undisputed  favorable  matters 
which  permjt  the  witness  to  depart  in  good  condition. 

§  263.  Re-Cross-Examination  and  Subsequent  Proceed- 
ings. 
A  re-direct  examination  should  never,  if  it  can  be  avoided, 
lay  the  foundation  for  another  cross-examination.  The  ad- 
vocate calling  a  witness  has  the  right  to  close  the  inquiry, 
and  should  avail  himself  of  it  for  reasons  previously  stated. 
But  he  should  recollect  that  nothing  can  more  effectually 
dwindle  away  the  value  of  a  witness  and  his  evidence  than 
to  pass  him  back  and  forth  from  one  counsel  to  the  other, 
through  a  long  series  of  examinations.  It  is  not  merely  try- 
ing to  the  patience  of  the  court  and  jury,  and  to  the  temper 
of  the  witness,  but,  as  the  field  of  each  examination  is 
necessarily  narrower  than  the  preceding,  and  the  investiga- 
tion settles  slowly  down  upon  some  trivial  point  whose  rela- 
tion to  the  great  body  of  the  facts  the  advocates  themselves 
perhaps  do  not  perceive,  the  witness  and  his  evidence  are 
222 


OF  THE   RE-DIRECT   EXAMINATION.         §  264 

constantly  belittled  in  the  estimation  of  the  jury,  and  his  value 
to  the  cause  is  measured  rather  by  the  trifle  with  which  he 
concludes  than  by  the  important  statements  with  which  he 
began.  Unless  the  practice  of  the  court  is  lax  in  this  respect, 
the  re-direct  examination  will  terminate  the  ordeal  of  the  wit- 
ness if  the  advocate  confines  himself  to  matters  stated  in  the 
direct  and  the  cross ;  and  when  he  opens  the  way  for  further 
cross-examination,  it  should  be'  only  for  the  sake  of  advan- 
tages great  enough  to  compensate  him  for  the  loss  of  force 
which  the  testimony  of  his  witness  is  certain  to  experience. 
Such  re-cross-examinations  and  their  re-directs,  when  they 
do  occur,  are  governed  by  the  same  rules  as  the  principal 
examinations  to  which  they  are  subordinate. 

§  264.    Production  of  the  Evidence  :  Fundamental  Princi- 
ple Governing  the  Advocate. 

The  nature  of  the  impressions  made  upon  a  jury  during 
the  production  of  evidence  demonstrates  that  its  character  is 
that  of  a  true  oratorical  act.  Where  testimony  is  taken  by 
deposition,  and  is  examined  and  collated  at  his  leisure  by  a 
single  judge,  who  draws  his  own  inferences  from  the  facts 
and  is  free  from  any  of  those  influences  exerted  by  the  pres- 
ence of  living  witnesses  and  the  incidents  occurring  in  the 
court-room,  this  oratorical  element  is  wanting.  He  is  sup- 
posed to  perceive  all  the  evidence  at  once,  to  separate  the 
important  from  the  insignificant,  and  to  arrive  at  no  conclu- 
sion until  the  actual  case  is  spread  before  him  in  its  complete 
verity  of  fact  and  law.  But  before  a  jury  the  presentation  of 
testimony  is  not  only  an  act  in  which  the  qualities  of  oratory 
are  exercised,  but  it  is  a  true  oration  in  the  sense  that  it 
constantly  progresses  toward  a  predetermined  end.  A  jury 
listening  to  evidence  are  never  in  a  state  of  judicial  equi- 
librium. Their  minds  are  in  perpetual  motion,  advancing 
with  every  favorable  impression  toward  the  decision  which 
the  advocate  desires,  receding  from  it  with  every  one  that  is 

223 


§  264  FORENSIC   ORATORY. 

unfavorable.  Their  mingled  judgment  and  impulses  are 
momentarily  arriving  at  conclusions  ripe  for  action,  and  with 
the  next  moment  departing  from  them  into  new  convictions, 
which  in  their  turn  will  be  as  soon  abandoned.  Probably  in 
any  case  in  which  a  jury  can  eventually  agree  at  all,  the  tes- 
timony could  be  arrested  at  no  point  without  finding  them 
ready  to  pronounce  their  verdict,  though,  if  arrested  but  one 
witness  earlier  or  later,  the  verdict  might  have  been  materi- 
ally changed.  If  an  oration  is  a  dialogue  wherein  the  orator 
continually  answers  those  silent  questions  of  his  auditors 
which  rise  up  in  their  thoughts  as  he  proceeds,  much  more 
is  this  true  of  the  production  of  evidence,  which  continually 
brings  the  minds  of  the  jury  to  a  point  of  rest  whence  further 
inquiry  or  action  must  originate,  and  as  continually  meets 
the  springing  inquiry  with  its  reply.  Such  a  process  leaves 
no  room  for  reflection  and  little  room  for  memory.  Few 
jurors  at  the  close  of  a  day's  testimony  could  enumerate  the 
witnesses,  or  repeat  any  substantial  portion  of  their  evidence, 
but  nearly  every  juror  could  state  how  he  felt  in  reference  to 
the  cause  and  how  his  feelings  differed,  if  at  all,  from  those 
of  the  night  before.  This  is  no  strange  condition,  peculiar  to 
juries  or  to  forensic  controversies.  From  any  rapid  series  of 
unusual  phenomena,  whether  addressed  to  the  eye  or  to  the 
ear,  the  mind  retains  merely  a  resultant  idea  or  emotion, 
into  which  indeed  all  details  enter,  yet  enter  only  to  be  indi- 
vidually submerged.  If  advocates  who  have  prepared  a 
cause  for  trial  cannot  trust  themselves  to  remember  and 
reproduce  the  facts  collected  by  their  personal  research,  or 
to  address  the  jury  upon  the  points  produced  in  evidence 
without  written  memoranda,  and  in  their  own  examination  of 
the  cause,  with  all  its  elements  at  once  before  them,  often 
have  serious  doubts  as  to  its  justice  and  correct  decision, 
surely  no  jury  unfamiliar  with  the  cause,  hearing  each  witness 
once  and  once  only,  and  that  in  the  midst  of  distracting 
influences  and  preceded  and  followed  by  other  witnesses  of 
224 


OF  THE   RE-DIRECT   EXAMINATION.  §  264 

different  knowledge  and  expression,  could  preserve  in  their 
memories  these  separate  narratives,  or  place  each  detail  of 
the  evidence  in  its  appropriate  relation  to  the  issue.  Even 
when  summed  up  in  the  final  arguments,  or  in  the  charge  of 
the  court,  the  jury  do  not  so  much  recollect  them  as  accept 
them  as  correct  upon  the  authority  of  the  advocate  or  judge. 
This  operation  of  the  testimony  upon  the  minds  of  the  jury, 
and  the  condition  of  the  impressions  it  produces,  indicates  to 
the  advocate  the  fundamental  principle  which  should  govern 
his  production  of  the  evidence  in  every  stage  of  the  examina- 
tion. It  should  be  his  constant  aim  to  make  a  present  favor- 
able impression  on  the  jury, — to  have  them  now  well  disposed 
toward  him  and  his  cause.  How  they  felt  concerning  it  an 
hour  ago  is  of  less  consequence ;  how  they  will  regard  it  an 
hour  hence  is  yet  to  be  determined.  But  when  that  hour  or 
any  future  hour  arrives,  the  same  aim  and  endeavor  must  pro- 
vide for  it.  Hence  the  movement  of  the  advocate  must  keep 
pace  with  the  progress  of  the  cause.  What  a  witness  testified 
yesterday  did  its  work  yesterday  and  is  gone ;  whether  for 
good  or  evil  matters  little  in  comparison  with  what  is  being 
done  to-day,  and  to-day's  witnesses  will  in  like  manner  make 
their  mark  upon  the  sand,  and  in  like  manner  pass  away.  If 
the  advocate  directs  his  efforts  in  the  line  denoted  by  this 
principle,  he  will  waste  no  time  in  reviving  and  assailing  dead 
and  buried  foes.  He  will  esteem  it  better  to  create  new  im- 
pulses in  his  favor,  than  to  endeavor  to  remove  unfavorable 
ones  which  have  already  slipped  into  the  past.  He  will 
realize  how  much  the  jury  will  forget,  how  futile  is  the  effort 
to  contradict  or  to  explain  in  trifling  matters,  how  well  he 
can  afford  to  try  his  case  on  the  great  facts  which  it  em- 
bodies, and  to  crowd  these  perpetually  upon  the  attention  of 
the  jury,  in  every  method  intensifying  and  multiplying  the 
favorable  impressions  they  produce. 


*5  225 


§  265  FORENSIC   ORATORY. 


CHAPTER   XII. 

OF   ALTERCATION. 

§  265.    Altercation  Defined. 

Another  mode  in  which  the  advocate  presents  his  ideas  to 
the  jury  is  that  of  altercation  between  himself  and  the  ad- 
verse counsel.  During  the  entire  progress  of  the  cause 
more  or  less  opportunity  for  this  is  offered  in  arguments 
upon  interlocutory  questions,  and  in  the  cross-fire  of  wit  and 
repartee  which  springs  up  spontaneously  among  the  advo- 
cates. Where  no  occasion  manifests  itself,  one  may  be  pur- 
posely created  by  some  remark  which  provokes  a  discussion, 
in  the  course  of  which  the  desired  statement  can  be  made. 

§  266.    Altercation  :  Subjects  of. 

The  proper  subjects  for  such  altercations  are  of  two 
classes:  (i)  Matters  within  the  cause,  which  are  at  once 
favorable,  important,  and  indisputable ;  (2)  Matters  without 
the  cause,  which  will  not  be  denied,  and  if  known  to  the 
jury  might  influence  their  minds  toward  the  desired  decision. 
One  attribute  matters  of  both  these  classes  must  possess,  — 
they  must  be  indisputable.  Altercation  is  not  a  contest  in 
which  the  opposing  advocates  deny  the  assertions  or  impugn 
the  veracity  of  one  another.  It  is  the  affirmation  of  a  fact 
which  the  affirmant  knows  will  be  conceded  ;  and  though  it 
takes  place  in  a  conflict  over  some  other  subject,  it  forms  no 
essential  portion  of  the  controversy.  It  is  the  communica- 
tion of  an  idea  which  the  advocate  expects  the  jury  to  receive 
unqualified  by  explanation  or  by  contradiction,  a  result  im- 
possible if  the  matter  were  open  to  denial. 
226 


OF  ALTERCATION.  §  268 

§  267.    Altercation  :  Purposes  of 

Altercation  serves  several  useful  purposes.  It  enables  the 
advocate  to  multiply  the  favorable  impressions  made  upon 
the  jury  by  the  point  employed.  Repetition  of  the  same 
matter  in  the  oration  is  not  only  a  violation  of  oratorical 
rules,  but  soon  becomes  disagreeable  to  the  hearer,  and  must 
consequently  be  avoided.  Repetition  through  the  medium 
of  the  testimony  is  limited  by  the  number  of  good  witnesses 
who  are  able  to  assert  it.  But  repetition  by  means  of  alter- 
cation is  unrestricted  save  by  the  judgment  of  the  advocate, 
and  if  the  form  and  language  of  the  assertion  be  varied,  its 
substance  may  without  wearisomeness  be  frequently  presented 
to  the  jury.  In  this  manner  a  fact  in  itself  significant,  but 
which  might  in  the  course  of  the  proceedings  be  gradually 
forgotten,  may  be  perpetually  kept  before  the  jury,  and  never 
cease  to  operate  with  its  original  energy  upon  their  minds. 
Altercation  also  enables  the  advocate  to  introduce  matters 
which  could  not  be  discussed  at  length  in  the  oration,  or 
which,  if  left  till  then,  might  produce  bad  impressions  that 
can  now  be  prevented,  or  which,  though  not  admissible  in 
evidence  or  capable  of  any  formal  presentation,  are  known  to 
the  jury,  and  need  only  to  be  connected  with  the  case  at  bar 
in  order  to  arouse  their  sympathies  for  his  client,  or  excite 
antagonism  toward  his  adversary.  Facts  in  themselves  of 
little  consequence  may  thus  be  made  to  assume  gigantic 
proportions,  and  to  acquire  a  weight  and  value  with  which 
their  intrinsic  merits  never  could  endow  them. 

§  268.    Altercation  :  Advantages  of. 

The  advantage  of  altercation  is  not  merely  that  it  permits 
the  advocate  to  repeat  the  strong  points  of  his  cause  without 
tediousness,  or  to  introduce  arguments  and  statements  other- 
wise of  little  value,  but  that  it  always  attracts  attention,  and 
fixes  the  minds  of  the  jury  on  the  point  desired.  As  a 
momentary  respite  from  the  dulness  of  a  trial  it  is  always  wel- 

227 


§  268  FORENSIC   ORATORY. 

come,  and  if  short,  spirited,  and  good-natured  generally  aids 
the  cause.  Nothing  is  more  displeasing,  however,  than  a 
sour,  boorish  quarrelsomeness,  which,  simulating  altercation, 
degenerates  into  mere  personal  abuse  of  the  opposing  party 
or  his  counsel. 

§269.    Altercation:  Qualifications  of  the  Advocate  for. 

To  successful  altercation  a  quick,  active  intellect,  a  daunt- 
less courage,  and  a  fluent  tongue  are  necessary,  as  well  as  a 
clear  recollection  of  all  the  facts  connected  with  the  case.  A 
timid  or  slow-witted  advocate,  or  one  not  thoroughly  familiar 
with  his  cause,  should  never  venture  it ;  he  is  more  likely  to 
provoke  his  own  destruction  than  to  molest  his  adversary. 
Premeditation  as  to  what  the  adversary  may  reply  to  a  pro- 
posed assertion,  and  how  his  answer  can  be  met  or  turned 
against  him,  is  always  prudent,  but  to  lay  himself  open  to 
attack,  without  providing  a  method  of  escape  or  of  defence, 
is  an  act  of  temerity  in  the  advocate  which  deserves  the 
punishment  it  will  probably  receive. 

§  270.    Altercation  :  an  Act  of  Invention 

Altercation,  though  primarily  intended  for  the  foregoing 
purposes,  is,  like  the  production  of  evidence,  to  some  extent  an 
act  of  invention.  When  thus  employed,  its  object  is  to  draw 
the  fire  of  the  opposing  advocate,  unmask  his  batteries,  and 
discover  what  in  his  opinion  are  the  strong  points  of  his  case. 
Unless  he  is  upon  his  guard,  in  the  heat  and  haste  of  these 
disputes  a  skilful  and  audacious  challenge  will  meet  with 
prompt  acceptance,  and  in  the  strife  which  follows  he  may 
disclose  what  calmer  judgment  would  teach  him  to  conceal. 
The  use  of  altercation  for  this  purpose  requires  perhaps  a 
keener  sagacity  and  higher  courage  than  any  other  act.  an 
advocate  performs. 


228 


OF  EXPRESSION.  §  2J I 


BOOK   II. 

OF  EXPRESSION. 

§  271.    Act  of  Expression :  its  Scope  and  Divisions. 

The  second  act  of  practical  oratory  is  Expression.  This 
consists  in  clothing  the  ideas  collected  by  the  orator  in  such 
audible  forms  as  will  most  convincingly  and  persuasively 
communicate  them  to  his  hearers.  The  importance  of  this 
act  is  evident  from  the  fact  that  on  its  successful  performance 
depends  the  entire  effect  of  the  oration,  since  through  the 
forms  selected  for  that  purpose  all  the  ideas  received  by 
the  hearers  from  the  orator  must  be  conveyed.  If,  there- 
fore, the  ideas  themselves  have  any  value  for  his  purposes, 
and  warrant  the  research  and  labor  which  he  has  bestowed 
upon  them,  equally  do  they  merit  such  attention  to  the 
mode  in  which  they  are  expressed  as  will  impress  them  with 
their  utmost  force  upon  the  hearer.  In  this  act  of  expression 
are  involved  three  successive  processes  :  (i)  The  choice  of 
words  to  represent  ideas ;  (2)  The  collocation  of  words  into 
sentences  ;  (3)  The  construction  of  rhetorical  figures.  It  is 
the  object  of  these  processes  to  render  the  ideas  intelligible 
*and  attractive  to  the  hearer,  to  make  him  understand  exactly 
what  the  orator  intends  to  convey,  and  to  arouse  in  him  an 
interest  in  the  subject  of  discussion  so  intense  that  his  will 
shall  resolve  to  do  the  act  the  orator  desires.  To  every  kind 
of  writing  and  speaking  these,  processes  of  course  are  neces- 
sary, but  to  oratory,  and  particularly  to  forensic  oratory,  specific 
methods  are  adapted  which  must  be  followed  in  order  to  attain 
the  best  results. 

229 


§  272  FORENSIC   ORATORY. 


CHAPTER  I. 

OF  THE   CHOICE   OF  WORDS. 

§  272.    "Words :  Intelligibility ;  Defined :  Elements  of. 

For  the  purposes  of  oratory  no  words  are  intelligible  unless 
they  express  the  exact  meaning  of  the  orator,  and  present  it 
at  once  to  the  mind  of  the  hearer,  without  demanding  any 
reflection  or  delay  on  his  part  in  order  that  he  may  fully 
comprehend  it.  The  vocabulary  of  the  orator  is  by  this 
requirement  far  more  limited  than  that  of  the  writer  or  the 
conversationalist,  since  he  must  confine  himself,  at  whatever 
loss  of  rhetorical  excellence,  to  such  expressions  as  com- 
pletely convey  his  thought  in  the  very  instant  of  its  utterance, 
and  leave  the  hearer  free  to  devote  his  entire  attention  to 
that  which  immediately  succeeds  it.  A  single  word  whose 
ambiguity  or  strangeness  arrests  the  current  of  his  mental 
operations,  and  holds  him  back  while  the  orator  passes 
onward,  may  effectually  deprive  the  argument  of  all  con- 
vincing force,  and  even  so  dissatisfy  the  hearer  with  himself 
or  the  oration  as  to  destroy  all  its  persuasive  power.  Intel- 
ligibility is  thus  measured  by  two  standards;  one,  the  thought 
to  be  expressed ;  the  other,  the  apprehension  of  the  hearer. 
In  reference  to  the  thought  to  be  expressed,  words  must  be 
correct.  In  reference  to  the  hearer,  they  must  be  words 
whose  exact  meaning  he  will  immediately  understand. 

§273.    "Words:    Intelligibility:    Correctness:    Comprehen- 
sion of  Words. 
A  word  is  correct  when  it  exactly  expresses  the  idea  of  the 
speaker.     Every  idea  comprises  certain  elements  which  taken 
together  constitute  that  idea.     This  is  equally  true  whether 
230 


OF  THE  CHOICE  OF  WORDS.  §  274 

the  idea  is  of  an  act,  an  object,  or  an  attribute ;  it  continues 
the  same  idea  only  while  its  elements  both  in  number  and  in 
character  remain  unchanged.  This  coincidence  of  an  idea 
with  the  sum  of  its  included  elements  is  known  as  its  com- 
prehension :  because  it  comprehends  every  subordinate  idea 
embodied  in  or  represented  by  these  elements,  and  nothing 
more.  A  word  exactly  expresses  an  idea  when  its  compre- 
hension is  identical  with  that  of  the  idea ;  that  is,  when  its 
meaning  embraces  and  is  restricted  to  the  constituent  ele- 
ments comprehended  in  that  idea.  If  it  embraces  less,  the 
presentation  of  the  idea  is  incomplete ;  if  more,  the  pres- 
entation is  redundant ;  and  in  either  case  the  idea  is  not 
conveyed  to  the  mind  of  the  hearer,  unless  he  is  already 
sufficiently  acquainted  with  it  to  supply  the  missing  elements 
or  reject  those  which  are  superfluous.  -Words  imperfect  by 
reason  of  such  incompleteness  or  redundancy  may  suggest, 
but  never  accurately  communicate,  ideas.  In  a  pure  lan- 
guage, properly  employed,  no  word  would  have  more  than 
one  comprehension  ;  and  whenever  taken  as  the  symbol  of  a 
thought  it  would  always  express  precisely  the  same  elements, 
united  in  the  same  manner.  In  the  technical  language  of  sci- 
ence and  the  arts  this  definiteness  and  perpetuity  of  meaning 
are  attained,  and  the  communication  of  exact  ideas  between 
their  votaries  is  thus  secured ;  but  in  the  vulgar  tongue  of 
any  people  many  words  gradually  acquire  several  comprehen- 
sions, and  so  become  unfit  for  the  transmission,  though  often 
serviceable  for  the  suggestion,  of  ideas. 

§  274.  Words  :  Intelligibility :  Correctness :  Extension  of 
"Words. 
A  word  is  correctly  used  when  it  is  applied  to  subjects 
whose  essential  elements  correspond  with  those  of  the  idea 
which  the  word  is  fitted  to  express.  Every  idea  is  predicable 
of  a  greater  or  less  number  of  subjects.  The  idea  of  a  genus 
may  be  affirmed  of  all  its  species ;  that  of  a  species,  of  all  its 

231 


§  274  FORENSIC    ORATORY. 

individuals ;  that  of  an  attribute,  of  ever)-  person,  act,  or  tiling 
in  which  it  inheres ;  that  of  an  act,  of  every  actor  who  could 
perpetrate  it,  of  every  object  upon  which  it  could  operate, 
and  of  every  method  in  which  it  could  be  performed.  The 
number  of  subjects  of  which  an  idea  can  be  predicated  meas- 
ures its  extension.  The  wider  the  comprehension  of  an  idea, 
that  is,  the  more  essential  elements  it  comprises,  the  narrower 
is  its  extension,  and  the  fewer  are  the  subjects  of  which  it 
can  be  affirmed ;  while,  conversely,  the  fewer  its  essential  ele- 
ments, the  more  numerous  are  the  subjects  to  which  it  may  be 
applied.  An  idea  can  thus  in  two  ways  be  incorrectly  pre- 
sented to  the  mind :  by  including  in  it  elements  which  are 
redundant  or  excluding  from  it  elements  which  are  essential, 
—  a  mistake  as  to  its  comprehension  ;  and  by  applying  it  to 
subjects  with  whose  essential  elements  its  own  do  not  corre- 
spond, or  by  denying  it  of  subjects  between  whose  elements 
and  its  own  there  is  a  true  agreement,  —  a  mistake  as  to  its 
extension.  All  errors  in  the  apprehension  of  ideas  and  all 
errors  in  the  use  of  such  words  as  have  but  one  comprehen- 
sion are  of  one  or  the  other  of  these  classes,  and  by  attending 
to  the  comprehension  and  extension  of  ideas  and  words  may 
therefore  be  avoided. 

$275.    "Words:     Intelligibility:     Correctness:     Equivocal 
■Words. 
When  a  word  has  two  or  more  comprehensions  it  is  equiv- 
ocal, and  taken  by  itself  is  never  intelligible.     Light,  for  ex- 
ample, is  used  as  a  noun,  a  verb,  and  an  adjective,  and  in 
each  of  these  uses  has  several  different  meanings.     Apart 
from  the  context  or  from  other  circumstances  which  inter- 
pret it,  no  definite  idea  is  conveyed  by  this  word  from  the 
speaker  to  the  hearer.     The  English  language  is  full  of  these 
equivocal  terms,  and  to  their  presence  are  due  not  only  the 
inexactness  of  thought  which  characterizes  the  Anglo-Saxon 
mind,  but  multitudes  of  political,  social,  and  theological  con- 
232 


OF  THE  CHOICE   OF   WORDS.  §  276 

troversies  which  have  no  other  origin  than  the  use  of  the 
same  words  in  different  senses  by  the  several  contestants. 
Even  the  language  of  the  law  is  infected  by  the  same  verbal 
pestilence.  Words  once  of  a  single  and  precise  signification 
have  been  misapplied,  through  ignorance  or  carelessness,  in 
text-books,  statutes,  and  judicial  decisions,  and  new  terms 
have  been  created  and  abused  in  the  same  manner,  until  it 
is  no  rare  occurrence  for  our  highest  courts  to  contradict 
each  other  in  their  formulated  statements  of  the  law,  although 
the  doctrines  they  endeavor  to  announce  are  actually  the 
same.  Neither  in  writing  nor  in  speaking  ought  such  words 
ever  to  be  used  unless  the  sense  in  which  they  are  employed 
is  made  unmistakable  by  those  which  immediately  precede 
or  follow  them ;  and  from  every  oration  they  should  be  as 
far  as  possible  excluded,  since  for  the  hearer  to  define  the 
word  by  reference  to  the  context  is  a  work  of  time,  and  inter- 
rupts that  close  adherence  of  his  mind  to  that  of  the  orator 
which  is  so  essential  to  ultimate  success.  If  no  word  of  one 
comprehension  can  be  found  which  will  convey  the  speaker's 
thought,  it  is  therefore  wiser  to  express  the  idea  by  a  phrase 
or  group  of  words  which  will  explain  itself,  than  to  employ  an 
equivocal  term  and  trust  to  its  interpretation  by  the  hearer 
through  other  words  by  which  it  is  accompanied. 

§  276.    Words  :  Intelligibility  :  Correctness  :  Tests  of. 

The  comprehension  of  a  word  is  determined  by  its  present 
usage,  whatever  may  have  been  its  etymological  derivation  or 
the  meaning  attributed  to  it  in  the  past.  Language  is  the 
vehicle  of  thought.  In  itself  entirely  artificial,  it  takes  its 
character  from  the  thought  which  it  conveys,  and  what 
thought  it  conveys  depends  on  the  interpretation  given  to  it 
by  those  who  speak  and  hear  it.  The  comprehension  of  a 
word  may,  therefore,  vary  from  age  to  age,  or  in  different 
localities ;  but  in  each  case  its  meaning  is,  or  ought  to  be, 
that  which  the  current  usage  then  and  there  bestows  upon  it. 

233 


§  276  FORENSIC   ORATORY. 

The  extension  of  a  word,  on  the  other  hand,  is  fixed  by  the 
unalterable  rules  which  govern  the  nature  and  the  attributes 
of  things.  The  comprehension  of  a  term  having  been  ascer- 
tained, everything  of  which  the  complete  idea  conveyed  by 
that  term  can,  as  a  matter  of  fact,  be  predicated  falls  within 
its  extension,  and  to  no  other  thing  can  it  ever  be  properly 
applied.  Correctness  of  words  in  writing  or  speaking  thus 
consists  in  their  employment  for  the  conveyance  of  such 
meanings  only  as  are  attributed  to  them  by  the  custom  of 
the  day,  and  in  their  application  to  those  subjects  only  of 
which  in  their  entire  and  exact  meaning  these  words  can  be 
truthfully  affirmed. 

§  277.    Words  :  Intelligibility  :   Correctness  :    Acquisition 
of  Correct  "Words. 

In  order  to  acquire  a  stock  of  correct  words,  and  a  facil- 
ity in  their  correct  use,  the  study  of  language  in  its  current 
meanings,  and  the  cultivation  of  a  general  knowledge  of  facts 
of  every  species,  are  essential.  The  study  of  language  should 
be  pursued  in  authoritative  dictionaries  and  grammars  which 
exhibit  the  usage  of  the  best  writers  and  speakers,  and  in  the 
case  of  the  orator  should  be  extended  beyond  these  into  the 
peculiar  usages  which  prevail  among  the  common  people  to 
whom  his  thoughts  are  ordinarily  addressed.  The  former  field 
may  be  explored  in  the  seclusion  of  his  library ;  the  latter 
only  by  direct  association  with  the  populace  themselves, 
from  whom  he  will  unconsciously  absorb  their  peculiarities 
of  speech  and  become  able  to  express  himself  to  them  in 
their  own  tongue.  A  general  knowledge  of  facts  is  the  result, 
for  this  purpose  as  for  every  other,  of  continual  observation 
and  research,  opportunities  for  which  are  ever  open,  and  in 
which  the  longest  lifetime  may  profitably  be  expended.  The 
treasures  thus  accumulated  can  be  retained  only  by  constant 
use  and  vigilance.  The  power  to  write  and  speak  correctly, 
even  when  acquired,  is  quickly  lost  if  its  possessor  indulges 

234 


OF  THE  CHOICE  OF  WORDS.  §  278 

himself  on  informal  occasions  in  careless  and  inaccurate 
modes  of  utterance.  Whether  in  conversation,  in  epistolary 
correspondence,  or  in  memoranda  intended  only  for  his  pri- 
vate use,  his  adherence  to  correct  words  and  to  their  correct 
application  should  be  as  faithful  as  in  his  most  labored  efforts. 
Otherwise  the  faults  which  he  admits  in  secret  will  soon  con- 
taminate his  public  compositions,  and  destroy  that  fidelity  of 
words  to  thoughts,  and  thoughts  to  subjects,  without  which 
the  communication  of  exact  ideas  becomes  impossible. 


§  278.  "Words  :  Intelligibility  :  Understood  by  the  Hearer. 
A  word,  being  intended  to  convey  an  idea  to  a  hearer, 
cannot  effect  its  purpose  unless  the  hearer  attaches  to  it  the 
same  meaning  given  to  it  by  the  user.  In  equivocal  words 
this  identity  of  interpretation  is  by  no  means  certain,  even 
when  both  parties  are  equally  acquainted  with  the  word. 
Univocal  terms,  to  which  but  one  meaning  is  possible,  if 
known  to  both  parties,  communicate  to  one  the  precise  idea 
of  the  other,  but  if  unknown  to  the  hearer  either  express  to 
him  no  thought  whatever  or  some  false  conception  which,  for 
the  instant,  his  mind  attributes  to  the  word.  Hence  no  word 
is  intelligible  unless,  before  its  present  use,  it  had  already  been 
adopted  by  the  hearer  as  a  symbol  of  the  idea  which  the 
speaker  now  endeavors  to  impart.  In  written  matter  where 
reflection  may  aid  the  reader  to  recall  the  meaning  of  the 
word,  or  in  conversation  where  if  not  immediately  appre- 
hended it  may  be  explained,  it  is  sufficient  that  the  word  be 
known.  But  in  matter  to  be  spoken,  where  its  full  signifi- 
cance must  be  at  once  impressed  upon  the  hearer's  mind,  it 
is  essential  that  it  be  not  only  known  to  him,  but  perfectly 
familiar,  —  the  very  word,  in  fact,  which  if  he  were  himself 
expressing  the  idea  would  fall  spontaneously  from  his  lips. 
Thus,  among  words  concerning  whose  correctness  there  can 

235 


§  278  FORENSIC   ORATORY. 

be  no  question  the  orator  is  limited  to  those  which  are  a  part 
of  the  natural  vocabulary  of  his  hearer,  and  to  which  he 
will  instinctively  attach  the  meaning  they  are  now  intended 
to  convey. 

§  279.    Words  :  Intelligibility  :  Understood  by  the  Hearer. 

In  oratory  the  hearer  distinguishes  the  words  of  the  speaker 
only  by  their  sound.  When  clearly  and  completely  uttered, 
and  as  completely  and  clearly  received  by  the  ear,  familiar 
and  correct  words  immediately  convey  the  exact  meaning  of 
the  speaker  to  the  hearer.  But  where  their  utterance  or 
their  reception  by  the  ear  is  imperfect  or  indistinct,  either  the 
idea  is  not  conveyed  at  all,  or  the  pause  and  effort  of  the 
hearer's  mind  to  interpret  the  defective  sound,  and  discern 
the  intended  word  and  its  significance,  interrupts  the  course 
of  thought  and  seriously  impairs  its  force.  The  intelligibility 
of  words  in  oratory  thus  depends  largely  on  the  ease  and 
certainty  with  which  they  can  be  properly  pronounced  and 
accurately  heard.  Many  words  in  our  language  are  not  of 
this  character.  By  the  number  of  their  syllables,  or  the 
accumulation  of  weak-sounding  letters  in  one  portion  of  the 
word,  especially  in  the  last  syllable,  or  the  conjunction  of 
letters  so  diverse  that  the  voice  with  difficulty  utters  one  dis- 
tinctly after  uttering  the  other,  or  the  indeterminate  pronun- 
ciation which  sometimes  attaches  to  a  foreign  word  for  years 
after  its  adoption  into  the  vernacular,  and  numerous  other 
causes,  these  words  are  rendered  almost  useless  for  the  ora- 
torical transmission  of  ideas.  Such  words  should,  therefore, 
be  allowed  no  place  in  the  vocabulary  of  the  orator.  Short 
words,  rarely  exceeding  three  syllables,  formed  of  strong 
letters,  easy  to  utter,  certain  to  be  heard,  —  these  are  his  only 
serviceable  instruments,  the  sole  vehicles  which  are  sure  to 
carry  his  unadulterated  thoughts  into  the  ears  and  minds  of 
his  hearers. 
23,6 


OF  THE   CHOICE   OF   AYORDS.  §  280 

§  280.     "Words  :  Attractiveness  :  Appropriate  Sounds. 

Words  when  intelligible  communicate  ideas,  but  some- 
thing more  than  the  mere  apprehension  by  the  hearer  of  the 
speaker's  thought  is  necessary  for  the  purposes  of  oratory. 
Intelligible  words  do  not  of  themselves  excite  attention, 
awaken  interest,  or  attract  the  hearer  toward  the  speaker  and 
his  cause.  There  is  a  charm  in  certain  words  derived  from 
other  sources  than  their  correctness  and  familiarity,  a  charm 
which  all  true  poets  know  how  to  employ,  and  which,  though 
heightened  by  the  intonations  of  the  speaking  voice,  results 
from  the  construction  of  the  word  itself,  the  collocation  of  its 
sounds,  the  vividness  with  which  it  pictures  its  appropriate 
idea.  Such  are  the  words  whose  sounds  imitate  the  action 
or  the  object  they  describe,  whose  soft  notes  soothe,  whose 
vigorous  tones  arouse,  whose  rapid  utterance  portrays  the 
onward  rush  of  feelings  or  events,  whose  measured  cadences 
express  the  pause  and  calm  of  triumph  and  repose.  In 
these  words  the  common  language  of  our  people  is  peculi- 
arly rich.  The  great  poets  and  many  of  the  prose  writers  of 
the  century  abound  with  them,  and  by  their  use  have  given 
to  their  word-paintings  an  energy  and  impressiveness  scarcely 
less  intense  than  if  the  scenes  and  incidents  which  they  depict 
had  been  presented  to  the  reader's  eyes.  Such  words  al- 
ways attract  attention  when  appropriately  used.  They  are 
pre-eminently  the  natural  language  of  the  human  race.  They 
strike  the  mind  as  the  die  falls  upon  the  waiting  gold,  and 
coin  it  into  the  image  and  the  likeness  of  his  whose  thoughts 
they  represent.  They  cause  to  live  anew  within  the  hearers 
not  only  the  ideas  but  the  emotions  of  the  speaker,  and  con- 
stitute the  instruments  by  which  eventually  he  bends  their 
wills  to  his.  But  while  in  every  oration  such  words  should 
be  employed  in  preference  to  others  whenever  strong  im- 
pressions are  to  be  created,  no  oration  should  be  composed 
of  these  alone.  The  strain  alike  upon  the  speaker  and  the 
hearer  would  be  unendurable,  and  in  the  inevitable  reaction 

237 


§  280  FORENSIC    ORATORY. 

the  force  of  the  idea  and  its  expression  would  be  dissipated. 
When  the  perceptive  faculties  of  the  hearer  are  addressed,  as 
in  simple  statements  of  fact,  or  in  the  definition  of  the  mat- 
ters in  dispute,  or  the  discussion  of  abstract  rules  and  prin- 
ciples, where  the  sole  object  of  the  speaker  is  to  be  clearly 
understood,  a  diction  which  does  not  arouse  the  feelings  of 
the  hearers  is  safer  for  himself  and  more  acceptable  to  them, 
reserving  for  those  parts  of  the  oration,  which  are  intended  to 
excite  emotions  and  direct  the  will,  his  stimulating  thoughts 
and  glowing  words.  But  even  in  these  tamer  portions  of  his 
speech  no  mean  or  vulgar  terms  should  ever  find  a  place, 
for  those  to  whom  they  are  not  unfamiliar  in  reading  and  in 
conversation  are  no  less  repelled  by  them,  when  they  mani- 
festly violate  the  dignity  of  the  occasion  or  the  orator,  than 
those  whose  ordinary  language  is  cultured  and  refined. 

§  281      Words  :   Attractiveness  :   Synonyms. 

The  most  attractive  words  soon  lose  their  power  when  fre- 
quently repeated.  Yet  in  oratory  no  idea  of  any  value  or 
importance  can  be  sufficiently  impressed  upon  the  hearer  by 
a  single  statement.  It  must  be  again  and  again  presented  to 
him  in  order  that  his  grasp  upon  it  may  be  perfect  and 
secure,  and  that  it  may  operate  with  all  its  energy  upon  his 
mind.  To  do  this  without  using  the  same  words  requires  an 
adequate  and  familiar  knowledge  of  groups  of  synonyms 
which  can  be  interchangeably  employed,  thereby  multiplying 
forms  of  expression  while  the  thought  remains  the  same.  Of 
these  also,  in  our  language,  there  is  no  deficiency,  scarcely 
any  word  in  ordinary  use  being  destitute  of  parallels  which 
can  be  substituted  for  it  without  altering  the  sense  ;  while  in 
those  rare  cases  where  no  exact  synonym  exists  phrases  of 
identical  significance  are  easily  constructed.  So  much  at- 
tention has  been  paid  to  the  collection  of  these  synonyms  by 
careful  and  authoritative  writers,  that  the  orator  has  only  to 
avail  himself  of  their  results  in  order  to  become  supplied 
238 


OF  THE   CHOICE   OF   WORDS.  §  282 

with  words  of  such  variety  that  his  necessary  iterations  of  the 
same  idea  need  never  become  tedious  to  his  hearers. 


§282.  "Words:  Attractiveness:  Acquisition  of  Attractive 
Words. 
The  duty  of  acquiring  a  vocabulary  of  intelligible  words  is 
common  to  all  persons  who  undertake  in  any  manner  to 
communicate  ideas  ;  that  of  acquiring  a  store  of  attractive 
words  pertains  especially  to  the  orator  and  poet,  yet  more  to 
the  former  than  the  latter  since  in  speaking  the  operation  of 
the  words  is  only  momentary.  This  acquisition  is  the  result 
of  practice  rather  than  of  study,  of  the  selection  from  his 
treasury  of  intelligible  words  of  those  whose  sound  renders 
them  available  for  his  peculiar  purposes,  and  the  constant 
use  of  these  in  conversation,  in  audible  recitation,  and  in 
public,  until  the  mind  instinctively  employs  them  in  express- 
ing its  ideas.  Narrow  as  are  the  limits  within  which  the 
orator  thus  confines  himself,  they  are  wide  enough  to  have 
served  his  famous  predecessors  of  every  race  and  age,  and 
will  supply  him  with  all  the  verbal  ammunition  which  his 
needs  require. 


239 


§  283  FORENSIC   ORATORY. 


CHAPTER  II. 

OF  THE   COLLOCATION   OF  WORDS  INTO   SENTENCES. 

§  283.   Sentences :  Intelligible :  Attractive. 

In  the  collocation  of  words  into  sentences  the  same  ob- 
jects are  sought  as  in  the  choice  of  the  words  themselves. 
To  a  great  extent  the  intelligibility  and  attractiveness  of  sen- 
tences depend  upon  the  words  of  which  they  are  composed. 
But  to  the  arrangement  of  the  words  within  the  sentence 
much  of  its  effectiveness  is  also  due ;  the  force  and  value  of 
each  word,  as  well  as  of  the  ideas  which  the  united  words 
express,  being  capable  of  indefinite  augmentation  or  decrease 
by  the  order  in  which  they  are  presented.  A  sentence  is  the 
expression  of  a  single  thought,  or  of  an  indivisible  cluster  of 
thoughts  which  is  intended  to  make  a  complete  and  inde- 
pendent impression  on  the  mind.  The  words  wherein  these 
thoughts  have  been  embodied  are  often  capable  of  numerous 
collocations,  any  of  which  would  be  sufficient  to  communi- 
cate the  thought,  but  there  is  always  one  which  above  all 
others  will  render  it  intelligible  and  attractive  to  the  hearer. 
The  discovery  and  employment  of  this  one  perfect  arrange- 
ment is  thus  a  labor  to  be  performed  with  the  same  diligence, 
and  attended  with  the  same  advantage,  as  that  already  ex- 
pended on  the  selection  of  its  words. 

§  284.    Sentences:  Intelligibility:  Clearness. 

The  primary  requisite  to  the  intelligibility  of  a  sentence  is 

its  clearness.     Every  sentence  consists  of  a  subject  and  a 

predicate,  with  such  qualifying  phrases  as  are  necessary  to 

define  the  subject  or  to  limit  the  application  of  the  predicate. 

240 


COLLOCATION    OF   WORDS   INTO    SENTENCES.    §  284 

When  the  words  of  a  sentence  are  so  selected  and  arranged 
that  these  relations  between  the  predicate  and  subject  are 
correctly  and  completely  stated,  in  such  a  manner  as  to  be 
instantly  apprehended  by  the  hearer,  the  sentence  is  clear ; 
otherwise,  it  is  more  or  less  ambiguous  and  confused.  Clear- 
ness in  these  respects  is  essential  to  intelligibility ;  for  if  the 
mind  of  the  hearer  fails  to  perceive  the  nature  of  the  subject 
or  the  predicate,  or  the  mode  in  which  or  the  conditions 
under  which  the  latter  is  affirmed  of  the  former,  the  mean- 
ing of  the  speaker  is  lost,  and  his  effort  to  communicate  his 
thought  has  been  in  vain.  To  secure  clearness  in  a  sentence 
its  language  must,  in  the  first  place,  be  precisely  coextensive 
with  the  proposition  it  embodies.  Its  words  must  be  correct 
and  numerous  enough  to  express  fully  every  element  in  the 
proposition,  while  every  word  which  does  not  aid  in  the  dis- 
closure of  its  meaning  must  be  excluded.  Ellipsis,  or  the 
omission  of  a  word  or  phrase  to  be  supplied  by  the  reader  or 
hearer,  if  ever  justifiable  in  any  composition,  is  not  permissi- 
ble in  oratory.  The  hearer  has  an  occupation  quite  incom- 
patible with  that  of  perfecting  the  incomplete  sentences  of 
the  speaker,  and  it  is,  therefore,  the  duty  of  the  speaker  to 
insert  into  his  sentences  every  particle  and  pronoun  which 
can  make  his  proposition  more  immediately  intelligible  to 
the  hearer.  In  the  second  place,  the  arrangement  of  these 
words  must  be  simple.  The  subject  and  predicate  must  oc- 
cupy the  most  prominent  positions,  and  qualifying  phrases 
must  be  placed  in  close  proximity  to  those  whose  meaning 
they  are  intended  to  limit  or  define.  When  several  qualify- 
ing phrases  are  employed,  describing  different  attributes  or 
conditions  of  the  subject  or  the  predicate,  that  which  de- 
notes the  nearest  attribute  or  most  essential  condition  should 
hold  the  same  position  in  their  verbal  presentation.  Thus, 
for  example,  time,  place,  instrument,  and  method  are  con- 
ditions or  attributes  of  an  act,  and  with  the  act  method  is 
more  intimately  connected  than  instrument,  and  instrument 

16  241 


§    284  FORENSIC   ORATORY. 

than  place  or  time  ;  and  consequently  each  should  be  stated 
in  the  same  relative  position  to  the  statement  of  the  act. 
Moreover,  where  the  customary  usages  of  the  language  will 
permit,  these  qualifying  phrases  should  precede  the  predicate 
or  subject,  and  that  one  be  first  in  order  which  is  naturally 
most  remote.  In  this  manner  the  mind  of  the  hearer  is 
easily  led  from  the  general  to  the  particular,  his  impressions 
become  more  intense  as  the  principal  elements  of  the  prop- 
osition are  approached,  and  his  entire  attention  is  concen- 
trated on  them  when  they  are  at  last  expressed.  Whether 
the  subject  or  the  predicate  should  occupy  the  earlier  portion 
of  the  sentence  depends  upon  the  character  of  the  idea  to 
be  conveyed,  and  the  attitude  of  the  hearer's  mind  toward 
the  elements  of  which  it  is  composed.  To  give  the  predi- 
cate the  first  position  always  renders  a  sentence  more  striking 
and  emphatic ;  and  where  the  hearer  is  already  so  familiar 
with  the  subject  as  to  apply  the  predicate  to  it  at  once  with- 
out waiting  for  it  to  be  mentioned,  this  arrangement  is  also 
conducive  to  clearness.  But  where  that  of  which  the  predi- 
cate is  to  be  affirmed  is  as  yet  unknown  to  him,  the  meaning 
of  the  sentence  is  more  quickly  grasped  if  the  subject  be  first 
indicated  and  described. 

§  285.    Sentences:  Intelligibility:  Unity. 

The  second  requisite  to  the  intelligibility  of  a  sentence  is 
its  unity.  Unity  consists  in  the  restriction  of  the  sentence 
to  the  expression  of  a  single  idea,  or  one  indivisible  cluster 
of  ideas.  Every  proposition  which  is  capable  of  complete 
and  independent  statement  should  be  embodied  in  a  distinct 
sentence,  and  never  be  incorporated  into  another,  either  as 
an  addition,  or  in  the  form  of  a  parenthesis.  The  division 
of  a  discourse  into  sentences,  and  the  pause  at  the  end  of 
each  sentence,  are  intended  not  merely  to  afford  a  rest  to 
the  speaker,  but  to  provide  an  opportunity  for  the  hearer  to 
assimilate  the  thought  just  uttered  by  the  speaker,  before  its 
242 


COLLOCATION   OF   WORDS   INTO    SENTENCES.     §  2  86 

successor  is  announced.  To  present  to  him  two  separate 
ideas  at  once,  to  be  together  apprehended  and  absorbed, 
tends  to  impair  the  intelligibility  of  both,  unless  the  sentence 
thus  constructed  is  so  pronounced  in  speaking  as  to  distin- 
guish one  thought  from  the  other  by  proper  pauses  and 
inflections  of  the  voice,  in  which  case,  however  written  and 
punctuated,  the  sentences  as  spoken  are  distinct.  But  to 
trust  to  the  inspiration  of  the  moment  thus  to  divide  a  single 
sentence  is  never  prudent.  When  the  sentences  are  com- 
posed they  should  be  made  fit  for  utterance  by  bringing  each 
to  a  perfect  close.  The  brevity  so  essential  to  their  compre- 
hension will  thus  be  secured,  and  the  orator  will  avoid  the 
danger  of  obliterating  one  impression  from  the  mind  of  his 
hearer  by  crowding  upon  it  another  in  the  rapid  vehemence 
of  his  delivery. 

§  286.   Sentences:  Attractiveness:  Strength. 

The  attractiveness  of  sentences,  and  their  consequent 
power  to  enchain  attention  and  awaken  impulse,  depends 
upon  their  strength  and  harmony.  As  words  are  strong  in 
proportion  to  the  vividness  with  which  they  picture  ideas  to 
the  mind,  so  sentences  are  strong  whenever  the  arrangement 
of  their  words  accomplishes  the  like  result.  Strength  is  at- 
tained by  the  omission  of  redundant  words  and  ornamental 
phrases,  by  the  exclusion  of  trivial  and  unnecessary  incidents 
and  qualifications,  by  avoiding  the  repetition  of  the  same  idea 
in  other  words  of  the  same  sentence,  and  by  the  judicious 
use  of  particles.  Strength  is  increased  by  placing  the  principal 
words  where  as  pronounced  they  will  be  most  impressive, 
by  arranging  the  members  of  the  sentence  in  a  progres- 
sive order  from  the  weaker  to  the  stronger  with  the  strongest 
last,  by  inserting  qualifying  phrases  at  the  beginning  or  in  the 
middle  of  the  sentence  rather  than  at  the  end,  by  making  an- 
tithetic sentences  alike  in  language  and  construction,  and  by 
closing  every  sentence  with  an  important  and  emphatic  word. 

243 


§  287  FORENSIC   ORATORY. 

§  287.   Sentences:  Attractiveness:  Harmony. 

Harmony,  though  especially  desirable  in  spoken  sentences, 
is  not  without  its  value  in  those  intended  only  to  be  read. 
The  delight  with  which  the  works  of  certain  authors  are  pe- 
rused, and  the  ease  with  which  their  ideas  are  apprehended, 
are  due  in  no  small  degree  to  the  smoothness  and  rhythm  of 
their  sentences,  as  if  they  were  addressed  to  some  interior 
sense  of  hearing  as  well  as  to  the  eye,  and  thus  with  doubled 
energy  impressed  their  ideas  on  the  mind.  This  incidental 
excellence,  which  harmony  supplies  to  written  compositions, 
indicates  its  paramount  importance  in  every  form  of  orator)'. 
It  alone  renders  a  pleasing  and  effective  delivery  possible, 
for  neither  sweetness  of  tongue  nor  grace  of  gesture  can 
make  a  harsh  and  halting  sentence  welcome  to  the  ear.  So 
well  has  this  been  understood  by  the  great  orators  of  every 
race,  and  with  such  docility  have  they  pursued  the  method 
of  framing  sentences  which  it  requires,  that  many  of  their 
most  famous  passages  are  as  truly  metrical  as  any  verse  that 
poet  ever  sang.  To  harmony  of  sentences  attractive  words 
are,  of  course,  indispensable.  To  arrange  these  in  such  a 
manner  that  each  shall  flow  smoothly  into  its  successor,  with- 
out the  loss  of  a  single  note  or  an  abrupt  transit  from  one  in- 
tonation to  another;  to  combine  them  into  musical  groups 
exhibiting  the  various  accents  and  inflections  of  the  human 
voice ;  to  build  them  into  sentences  whose  measure  hastes 
or  loiters  with  the  stream  of  thought ;  to  terminate  each  sen- 
tence with  some  strong,  sweet  sound  which  leaves  the  ear 
reverberant  with  melody,  —  these  are  the  means  by  which  the 
poet  and  the  orator  alike  seek  to  make  real  to  other  men 
those  glowing  images,  or  impassioned  thoughts,  by  which  their 
own  ardent  souls  are  irradiated  or  inflamed.  One  license  is 
permitted  to  the  poet's  harmony,  however,  which  is  forbid- 
den to  the  orator.  The  sounds  and  measures  of  the  poet 
may  be  constantly  repeated,  and  in  this  repetition  resides  for 
many  ears  the  charm  of  song.  But  such  monotony  in  an 
244 


COLLOCATION   OF  WORDS   INTO    SENTENCES.     §  289 

oration  would  be  intolerable.  It  is  opposed  to  the  funda- 
mental theory  of  oratory  as  a  spiritual  force  urging  both 
speaker  and  hearer  toward  a  predetermined  end.  The  in- 
cessant changes  in  idea  and  impulse  through  which  this 
spiritual  energy  manifests  itself  demand  a  corresponding 
variety  in  the  sound  and  rhythm  of  sentences,  as  well  as  in 
the  words  of  which  they  are  composed ;  and  this  must  be  se- 
cured, if  necessary,  by  such  a  rearrangement  of  the  thoughts 
that,  while  their  fitting  sounds  and  measures  are  retained,  the 
undesirable  monotony  may  be  avoided.  But  never  should 
the  intelligibility  of  a  sentence  be  sacrificed  to  either  strength 
or  harmony.  Sweet  and  sonorous  as  may  then  be  its  tones, 
it  becomes  a  dead  language  to  the  hearer,  and,  whatever  it 
may  be  to  him  as  music,  it  is  no  longer  oratory. 

§  288.   Periods:  Construction. 

A  period  is  a  group  of  sentences  connected  in  meaning  by 
their  relation  to  a  common  subject,  and  of  which  the  com- 
plete significance  does  not  appear  until  all  are  concluded. 
Each  subdivision  of  the  matter  under  discussion  usually  con- 
stitutes the  subject  of  a  period.  Like  a  sentence,  a  period 
should  be  characterized  by  clearness,  unity,  strength,  and 
harmony ;  and  by  the  same  methods  are  these  qualities  in 
each  case  attained.  A  period  should  begin  with  a  short 
sentence,  in  which  its  general  subject  is  disclosed,  and  ter- 
minate, if  possible,  with  one  exceeding  those,  which  have 
preceded  it,  in  harmony  and  strength. 

§  289.  Sentences:  Facility  in  Constructing:  how  Ac- 
quired. 
The  ability  to  collocate  words  into  perfect  sentences  is  ac- 
quired by  the  study  of  good  examples,  by  practice  in  com- 
position, and  by  reading  aloud.  Of  speakers  and  writers 
whose  sentences  possess  clearness  and  unitv  many  are  now 
accessible  to  every  reader,  and  with  one  or  more  of  these  the 

245 


§  289  FORENSIC   ORATORY. 

orator  should  make  himself  so  familiar  that  by  an  unconscious 
imitation  of  their  methods  his  own  sentences  may  gradually 
attain  the  same  degree  of  excellence.  Practice  in  writing 
fixes  the  good  habits  thus  developed,  enables  him  to  purge 
himself  from  his  remaining  faults,  and  often  to  improve  upon 
the  models  he  has  followed.  Reading  aloud  cultivates  not 
only  the  ear,  but  also  those  faculties  whose  exercise  gives  to 
his  sentences  their  strength  and  harmony.  The  audible 
recitation  of  blank  verse  soon  lends  to  all  the  discourse  of 
the  reciter  a  smooth  and  rhythmic  flow,  and  the  declaimer 
of  great  orations,  in  the  original  language  of  their  authors, 
acquires  with  little  other  effort  their  graphic  and  command- 
ing style. 


246 


OF  RHETORICAL  FIGURES.  §  291 


CHAPTER  III. 


OF  THE    CONSTRUCTION   AND   USE   OF   RHETORICAL   FIGURES. 

§  290.    Figures  :  their  Utility. 

Figures  are  forms  of  speech  in  which  the  ideas  of  the 
speaker  are  presented  to  the  hearer,  not  as  they  are  precisely 
apprehended  by  the  intellect,  but  colored  by  the  fancy  or 
intensified  by  the  emotions.  These  figures  enter  into  the 
natural  language  of  mankind,  and  characterize  the  discourse 
of  every  savage  and  primeval  race.  When  appropriate,  they 
multiply  methods  of  expression,  and  bestow  dignity  and 
beauty  both  upon  the  subject  and  upon  its  discussion.  They 
become  necessary  when  noble  and  stirring  thoughts  are  to 
be  communicated,  when  passions  are  to  be  aroused,  or  when 
important  truths  are  to  be  repeatedly  asserted.  In  a  calm 
statement  or  a  rigorous  demonstration  they  are  out  of  place, 
as  also  in  narrating  insignificant  events,  while  in  conditions  of 
extreme  emotion  the  images  which  prompt  them  vanish  from 
the  mind,  and  voice  and  thought  return  together  to  the  simpler 
modes  of  utterance. 

§  291.    Figures  :   Classes. 

Figures  have  been  divided  into  those  of  thought  and 
words.  Figures  of  thought  occur  when,  though  the  sub- 
stance of  the  idea  is  unchanged,  its  complexion  in  the 
speaker's  mind  is  altered,  and  in  this  new  attitude,  arrange- 
ment, or  apparel  it  is  represented  to  the  hearer.  Figures  of 
words  consist  either  in  using  words  in  artificial  meanings 
more  or  less  analogous  to  their  ordinary  interpretations,  or  in 
their  use  in  their  true  sense,  but  intentionally,  though  not 

247 


§  291  FORENSIC   ORATORY. 

unintelligibly,  misapplying  them  to  the  idea,  in  order  to  vary 
or  intensify  the  impression  which  would  have  been  created 
by  its  accurate  delineation.  This  classification  of  figures  is 
theoretically  correct,  but  is  not  observable  in  practice.  Fig- 
ures are  constantly  employed  in  which  both  words  and 
thoughts  depart  from  their  normal  forms  and  usages.  To 
become  familiar  with  them  individually,  and  to  cultivate  that 
instinct  which  leads  the  accomplished  speaker  to  select 
unerringly  those  which  are  best  suited  to  his  immediate 
purpose,  is  one  of  the  tasks  set  before  the  orator,  although  in 
their  discussion,  here  or  elsewhere,  the  rhetorician  may  de- 
scribe them  in  the  groups  to  which  abstractly  they  belong. 

§  292.    Figures  of  Thought. 

The  forms  into  which  a  speaker  may  cast  his  thought 
without  altering  its  substance  are  very  numerous.  Among 
those  most  serviceable  in  oratory  are  the  following  :  (i)  In- 
terrogation, where  the  assertion  of  a  fact  is  made  under  the 
form  of  a  question,  in  order  to  give  force  or  point  to  a 
demonstration,  or  to  affirm  what  cannot  be  denied  or  what 
cannot  be  proved,  or  to  attack  the  party  interrogated,  —  a 
frequent  and  important  figure,  appropriate  to  ideas  of  indig- 
nation, fear,  astonishment,  or  grief;  useful  often  in  argument, 
always  animating  a  discussion,  and  making  a  strong  impres- 
sion on  the  hearer ;  (2)  Prolepsis,  where  a  foreseen  objection 
is  stated  in  advance,  in  order  to  refute  it,  or  elude  it,  or  to 
impair  its  force  when  subsequently  urged  by  thus  depriving  it 
of  novelty;  (3)  Dissimulation,  where  the  speaker  pretends 
an  inordinate  apprehension  as  to  the  comparative  ability 
or  advantages  of  his  adversary,  in  order  to  excite  ridicule  or 
suspicion  against  him ;  (4)  Dubitation,  where  he  expresses 
doubt  concerning  the  matter  or  the  manner  of  his  own 
speech,  or  the  mode  in  which  the  interests  he  advocates 
should  be  promoted  or  defended  ;  (5)  Simulation,  where  he 
feigns  anger,  grief,  despair,  or  other  emotions  fitted  to  his 
248 


OF   RHETORICAL   FIGURES.  §  292 

subject ;  (6)  Communication,  where  he  appeals  to  the  adver- 
sary for  advice  or  aid;  (7)  Submission,  where,  for  the  pur- 
pose of  exhibiting  his  confidence  in  the  justice  of  his  claims, 
he  offers  to  submit  them  to  the  decision  of  the  hearers  or  of 
his  opponent ;  (8)  Permission,  where  he  throws  himself  or 
his  cause  upon  the  audience  for  guidance  and  protection ; 
(9)  Concession,  in  which  something"  not  injurious  to  himself, 
or  though  unfavorable  not  of  serious  consequence,  is  con- 
ceded to  the  adversary;  (10)  Exaggeration,  where  he  mag- 
nifies the  difficulties  of  his  own  position,  in  order  to  increase 
the  importance  of  the  arguments  or  facts  by  which  he  over- 
comes them;  (11)  Irony,  where  he  intends  that  the  oppo- 
site of  what  his  words  naturally  signify  shall  be  understood, 
—  a  common  form,  in  which  blame,  contempt,  or  hatred 
are  expressed  under  the  guise  of  praise,  respect,  and  love ; 
(12)  Apostrophe,  where  some  absent  person  or  thing  is 
addressed;  (13)  Prosopopoeia,  where  persons  present  or 
absent  are  supposed  to  speak,  —  a  figure  rarely  appropriate, 
but  when  appropriate  calculated  to  excite  profound  emotion  ; 
(14)  Dialogism,  where  the  speaker  imitates  a  dialogue  carried 
on  between  two  or  more  persons;  (15)  Obsecration,  where 
he  adjures  another  to  speak  or  act ;  (16)  Imprecation,  where 
he  invokes  vengeance  on  the  head  of  another  for  some  past 
action  or  omission;  (17)  Optation,  where  he  promises  under 
a  vow  to  do  or  to  refrain  from  doing;  (18)  Exclamation, 
where  he  expresses  some  vivid  thought  which  has  suddenly 
seized  his  mind,  —  a  figure  usually  introduced  by  interjec- 
tions ;  (19)  Hypotyposis,  where  he  depicts  a  person  or  an 
object  to  the  imagination  of  the  hearer,  in  all  the  details  of 
its  exterior  or  interior  characteristics,  its  actions,  places,  times, 
positions,  and  habiliments  ;  (20)  Hyperbole,  where  the  fore- 
going details  are  highly  magnified;  (21)  Diminution,  where 
they  are  extenuated  ;  (22)  Signification,  where  some  things 
are  described  and  others  left  to  be  inferred ;  (23)  Suspen- 
sion, where  the  speaker,  having  excited  the  hearer's  curiosity, 

249 


§  292  FORENSIC   ORATORY. 

holds  him  in  suspense,  intending  to  exhibit  to  him  at  a  later 
period  an  object  very  different  from  that  which  he  expects  ; 
(24)  Pretention,  where  he  affirms  that  he  will  not  disclose 
what  he  forthwith  describes ;  (25)  Reticence,  where  in  the 
midst  of  his  discourse  the  speaker  interrupts  himself,  and 
passes  to  another  subject,  as  if  he  feared  to  explain  further, 
or  has  more  to  tell  than  he  is  able  to  relate  ;  (26)  Correction, 
where  he  reproves  himself  for  not  having  spoken  better  than 
he  has  done;  (27)  Postponement,  where,  after  partly  con- 
sidering a  subject,  he  puts  off  its  further  discussion  to  a 
subsequent  part  of  his  oration;  (28)  Periphrase,  or  the 
statement  in  a  circuitous  mode  of  matter  whose  more  brief 
expression  would  be  harsh  or  vulgar ;  (29)  Antithesis,  where 
ideas  are  placed  in  opposition  to  each  other  in  order  more 
clearly  to  illustrate  their  elements  and  differences ;  (30)  Par- 
adox, where  two  contrary  attributes  are  affirmed  of  the  same 
subject ;  (31)  Comparison,  where  the  resemblances  of  objects 
are  depicted  in  order  to  explain  or  elevate  or  depreciate  one 
by  the  other;  (32)  Allusion,  where  one  matter  is  suggested  by 
another  which  is  actually  described ;  (^^)  Gradation,  where 
the  thought  gradually  ascends  or  retrogrades  from  one  sub- 
ject to  another ;  (34)  Epiphoneme,  where  the  speaker  closes 
a  period  or  an  argument  with  a  short  and  striking  sentence, 
in  which  he  sums  up  the  substance  or  conclusion  of  what  has 
previously  been  said. 

§  293.  Figures  of  Words  :  Artificial  Meanings  :  Metaphor. 
The  principal  figure  which  consists  in  the  employment  of 
a  word  in  an  artificial  sense  is  the  metaphor.  A  metaphor 
is  an  expression  imputing  to  one  object  the  name  or  qualities 
of  another,  —  as  to  call  a  brave  man  a  lion,  a  crafty  man  a 
fox,  a  capricious  and  spiteful  woman  a  cat,  or  to  speak  of 
the  mantle  of  sleep,  a  cloud  of  witnesses,  or  the  rapidity  of 
thought.  This  figure  is  founded  on  the  apparent  resem- 
blance between  the  thing  whose  name  or  attributes  are  men- 
250 


OF   RHETORICAL   FIGURES.  §  294 

tioned  and  the  thing  to  which  they  are  applied.  It  is  the 
most  useful  and  available  of  figures,  enabling  the  imagina- 
tion to  lay  hold  of  abstract  subjects,  and  clothing  sensible 
objects  in  pleasing  and  impressive  forms.  Every  language 
possesses  multitudes  of  metaphors,  consecrated  by  long 
usage,  and  supplying  modes  of  expression  for  which  there  is 
no  equivalent.  Metaphors  never  should  be  drawn  from  dis- 
agreeable or  vulgar  objects,  even  though  it  is  the  purpose  of 
the  speaker  to  disparage  that  to  which  he  applies  them,  nor 
should  the  resemblances  on  which  they  are  based  be  too 
remote,  nor  should  they  be  pursued  so  far  as  to  become  tire- 
some or  distract  attention  from  the  current  of  the  thought. 
Metaphors  should  be  suited  in  their  general  character  to  that 
of  the  discourse,  neither  too  grave  nor  too  gay,  never  ex- 
travagant nor  puerile.  A  metaphor  once  commenced  should 
be  completed  without  the  introduction  of  unfigurative  lan- 
guage or  of  a  different  metaphor.  Either  of  these  admix- 
tures tends  to  produce  confusion ;  that  of  mixed  metaphors 
is  also  frequently  ridiculous,  as  if  a  speaker  should  proclaim, 
"The  hand  of  Providence  has  smiled  upon  us";  or,  "The 
flag  of  freedom  burns  above  our  heads." 

§  294.    Figures  of  Words :  Artificial  Meanings  :  Allegory : 
Metonymy :  Synecdoche. 

An  allegory  or  parable  is  an  extended  metaphor,  in  which 
the  acts  or  conditions  of  one  object  are  suggested  by  describ- 
ing those  of  another.  This  figure  is  permissible  even  in  ora- 
tory, if  its  meaning  is  clear  and  it  is  not  too  protracted.  It 
is  useful  as  furnishing  examples  to  illustrate  an  argument,  and 
sometimes  serves  to  prove  the  speaker's  claims  by  an  appeal 
to  the  consciousness  of  his  hearer.  When  skilfully  related, 
it  always  excites  the  interest  of  an  auditor,  and  remains  in 
his  memory  long  after  the  more  positive  assertions  of  the 
orator  have  been  forgotten.  Metonymy  is  a  figure  in  which 
the  name  of  the  cause  is  substituted  for  that  of  its  effect,  as 

251 


§  294  FORENSIC   ORATORY. 

the  Muses  for  art  or  letters ;  or  the  effect  for  the  cause,  as 
shade  for  trees ;  or  the  container  for  the  contained,  as  cup 
for  wine  ;  or  the  sign  for  the  thing  signified,  as  sceptre  for 
sovereignty ;  or  the  possessor  for  the  thing  possessed,  as 
"Adams  is  wrecked"  for  "  the  ship  of  Adams  is  wrecked"; 
or  the  abstract  for  the  concrete,  as  whiteness  for  white. 
Synecdoche  consists  in  taking  the  genus  for  the  species,  as 
mortals  for  men ;  or  the  species  for  the  genus,  as  sword  for 
instruments  of  warfare ;  or  a  part  for  the  whole,  as  sail  for 
vessel ;  or  the  whole  for  a  part,  as  house  for  door ;  or  sin- 
gular for  plural,  as  the  Gaul  for  the  Gallic  armies ;  or  the 
material  for  the  thing  made  of  it,  as  steel  for  sword.  In  this 
figure,  as  well  as  that  of  metonymy,  the  substitution  of  one 
name  for  another  must  either  be  sanctioned  by  common 
usage,  or  the  meaning  of  the  orator  must  be  so  clear  that 
it  will  be   immediately  apparent  to  the  hearer. 

§  295.  Figures  of  "Words  :  Natural  Meaning :  Ellipsis : 
Hyperbaton  :  Syllepsis  :  Pleonasm. 
Of  the  four  figures  of  words  employed  in  their  natural 
meaning,  three  are  of  little  use  in  oratory.  These  are  the 
Ellipsis,  which  suppresses  words  whose  presence  is  required 
by  the  grammatical  construction  ;  Hyperbaton,  which  trans- 
poses the  grammatical  order  of  a  sentence,  and  is  rarely 
permissible  except  in  poetry  ;  and  Syllepsis,  in  which  the 
words  convey  a  different  idea  from  that  which  properly  be- 
longs to  them,  or  do  not  accord  with  the  construction  of  the 
sentence  taken  as  a  whole.  All  these  figures  tend  to  create 
obscurity,  and  therefore  are  to  be  avoided  by  the  orator. 
The  fourth,  or  Pleonasm,  is,  on  the  contrary,  of  great 
value.  This  consists  in  the  repetition  of  the  idea  just  ut- 
tered in  other  and  more  forcible  words,  enlarging  and  inten- 
sifying the  impression  already  made ;  as,  "  He  struck  him, 
struck  him  with  his  own  hand,  with  his  own  parricidal 
hand?' 

252 


OF  RHETORICAL  FIGURES.  §  297 

§  296.    Figures  of  Words  :  Oratorical  Figures. 

In  addition  to  the  foregoing  figures  there  are  others  pecu- 
liar to  oratory,  and  hence  known  as  oratorical  figures.  Of 
these  the  most  useful  is  Repetition,  which  is  intended  to  add 
force  and  point  to  an  assertion.  It  has  several  forms.  One 
repeats  the  principal  word  in  each  member  of  the  sentence  ; 
a  second  repeats  the  last  word  in  each  member  of  the  sen- 
tence ;  a  third  repeats  both  the  first  and  the  last  word  in 
each  member  of  the  sentence  ;  a  fourth  repeats  the  same 
word  but  with  some  slight  variation  in  its  form  or  meaning ;  a 
fifth  commences  successive  sentences  with  the  same  words ; 
a  sixth  ends  successive  sentences  with  the  same  words ;  and 
a  seventh  begins  and  ends  a  sentence  with  the  same  words. 
Another  figure  consists  in  the  omission  or  insertion  of  con- 
junctions, the  former  making  the  movement  of  the  speech 
more  rapid,  the  latter  rendering  it  more  impressive.  In  an- 
other, many  words  in  the  same  sentence  are  derived  from 
the  same  root.  Another  arranges  words  successively  accord- 
ing to  their  degrees  of  force  or  feebleness,  creating  a  climax 
or  an  anti-climax.  Another  brings  together  words  of  similar 
or  diverse  sound. 

§  297.    Figures  in  Forensic  Oratory. 

In  forensic  oratory  figures  are  employed  most  freauently 
for  the  exaggeration  or  extenuation  of  the  matters  in  dispute. 
One  mode  of  exaggeration  is  to  express  the  matter  by  a 
stronger  term  than  naturally  belongs  to  it ;  as  to  call  a  man- 
slaughterer  a  murderer,  or  a  simple  hurt  a  wound.  A  sec- 
ond mode  is  to  compare  the  matter  with  another  known  to 
be  of  great  importance,  and  assume  or  demonstrate  that- the 
present  one  exceeds  the  other.  A  third  mode  is  to  dilate 
on  the  grave  character  of  something  evidently  less  grave 
than  the  act  or  thing  in  question ;  as  by  expatiating  on  the 
enormity  of  an  assault  in  order  to  display  the  heinousness  of 
wilful  homicide.     The  first  mode  is  appropriate  in  any  part 

253 


§  297  FORENSIC   ORATORY. 

of  the  oration ;  the  second  and  third  are  proper  in  the  argu- 
ment and  peroration.  Extenuation  follows  the  reverse  of 
these  methods. 

§  298.    Acquisition  of  Figures. 

The  acquisition  of  a  sufficient  stock  of  rhetorical  figures  is 
a  work  of  much  less  difficulty  than  that  of  distinguishing  them 
from  one  another,  and  judiciously  selecting  them  for  use. 
They  are  frequent  in  our  literature  and  conversation.  The 
Bible,  the  great  poems  and  orations  with  which  every  student 
is  familiar,  abound  with  them  ;  and,  imitating  these  instinct- 
ively, every  one  employs  them  without  becoming  conscious 
that  he  has  departed  from  a  simple  and  unornamented  mode 
of  speech.  But  to  render  them  available  as  instruments  of 
oratory,  the  recognition  of  their  characteristic  attributes  and 
adaptations  is  essential.  In  this  respect  the  training  of  the 
orator  is  not  unlike  that  which  develops  the  schoolboy,  with 
unsteady  eyes  and  rapidly  revolving  fists,  into  the  pugilist 
skilled  in  the  manly  art  of  self-defence.  His  discipline  con- 
sists in  searching  out  these  figures  as  he  reads,  noting  their 
differences  in  purpose  and  effect,  examining  the  modes  in 
which  they  are  applied  by  model  orators  and  poets,  detect- 
ing errors  in  their  use  or  construction,  and  inserting  them 
into  his  own  compositions  in  various  ways  and  forms  in 
order  that  the  most  effective  may  be  finally  selected.  By 
this  method  he  will  at  last  arrive  at  such  a  command  of 
these  resources  that  the  best  words  and  figures  will  furnish 
themselves  to  him  as  he  requires  them,  and  nothing  will 
escape  his  lips  in  which  both  force  and  elegance  are  not 
combined. 


254 


OF   STYLE.  §  299 


CHAPTER  IV. 

OF   STYLE. 

§  299.    Style  Defined  :  Concise  or  Diffuse. 

The  construction  and  use  of  sentences  and  rhetorical 
figures  determine  the  style  of  the  composition  in  which 
they  are  employed.  No  style  can  be  commendable  that  is 
not  clear,  correct,  natural,  dignified,  and  harmonious  ;  but 
within  these  limits  its  character  depends  in  part  upon  its 
copiousness,  or  the  quantity  of  words  used  in  expressing  the 
ideas,  in  part  upon  its  ornamentation  by  rhetorical  figures, 
and  in  part  upon  its  energy,  or  the  impressiveness  with 
which,  through  the  use  of  proper  words  and  figures,  the 
ideas  are  conveyed.  Style,  as  to  its  copiousness  or  quantity, 
is  either  concise  or  diffuse.  A  concise  style  communicates 
ideas  in  the  fewest  possible  words,  and  introduces  no  rhe- 
torical figures,  or  only  such  as  add  force  rather  than  grace  to 
its  assertions.  A  diffuse  style  indulges  in  an  unrestricted  flow 
of  words,  presents  the  thought  in  many  different  aspects,  and 
clothes  it  with  all  available  and  appropriate  ornaments.  Car- 
ried to  an  extreme,  each  of  these  styles  becomes  objection- 
able ;  too  much  conciseness  producing  undue  brevity,  with 
its  consequent  harshness  and  obscurity ;  too  much  diffuse- 
ness  rendering  the  entire  sentence  weak  and  unimpressive. 
When  properly  employed,  each  is  adapted  to  certain  species 
of  compositions.  A  concise  style  is  suited  to  descriptive 
writing,  which  best  accomplishes  its  purpose  when  a  few 
striking  features  are  portrayed ;  to  didactic,  where  the  pre- 
cision with  which  the  idea  is  expressed  measures  its  appre- 
hension by  the  hearer ;  and  to  pathetic,  where  the  transient 
heat  of  excited  passion  is  dissipated  if  the  idea  is  kept  too 

255 


§  299  FORENSIC   ORATORY. 

long  before  the  mind.  A  diffuse  style  is  required  in  argu- 
mentative productions,  where  repetition  and  examples  are 
necessary  to  explain  and  enforce  the  demonstration  ;  in  per- 
suasive, where  new  impulses  are  to  be  continually  aroused  to 
operate  upon  the  will ;  and  in  narrative,  where  actions  and 
events  are  to  be  delineated  in  detail  with  their  attendant 
circumstances  and  effects.  In  oratory  a  style  more  or  less 
diffuse  is  indispensable,  in  order  that  the  auditor  may  fully 
comprehend  the  meaning  of  the  speaker,  although  pathetic 
and  descriptive  portions  must,  for  the  reasons  above  stated, 
be  as  much  as  possible  condensed. 

§  300.    Style  :  Dry,  Plain,  Neat,  Elegant,  Flowery. 

Style,  as  to  its  ornamentation,  has  been  classified  as  dry, 
plain,  neat,  elegant,  and  flowery.  A  dry  style  discards  all 
ornament,  and  aims  only  at  being  understood.  It  is  appro- 
priate in  purely  didactic  composition,  but  is  never  acceptable 
to  a  reader  unless  the  matter  discussed  is  of  grave  importance, 
and  the  language  is  correct  and  clear.  A  plain  style  possesses 
very  little  ornament.  It  seeks  to  combine  liveliness  and  force 
with  the  clearness  and  precision  of  the  dry  style,  and  is  suited 
for  ordinary  descriptions,  and  the  merely  formal  parts  of  a 
discourse.  A  neat  style  admits  of  moderate  decoration.  Its 
brief,  clear  sentences,  free  from  superfluous  words,  contain 
short  and  striking  figures,  and  close  with  an  harmonious 
cadence.  This  style  is  adapted  to  any  species  of  composi- 
tion. An  elegant  style  requires  copious  but  appropriate  or- 
namentation, great  clearness  and  richness  in  its  words,  and 
strength  and  harmony  in  its  sentences.  No  rhetorical  graces 
that  are  consistent  with  the  nature  of  the  subject-matter  are 
excluded  from  this  style,  which  is  the  highest  form  of  literary 
art.  A  flower)'  style  is  characterized  by  excessive  ornamen- 
tation, inconsistent  either  with  the  subject  or  the  occasion. 
It  is  always  a  violation  of  good  taste,  although  a  common 
fault  with  inexperienced  writers. 
256 


OF   STYLE.  §  301 

§  301.    Style  :  Simple,  Moderate,  Sublime. 

The  energy  of  style  is  its  power  to  move  the  feelings  and 
will,  as  well  as  to  communicate  ideas,  and  depends  upon  the 
measure  and  the  method  in  which  it  combines  the  two  pre- 
ceding attributes  of  quantity  and  ornamentation.  A  style  at 
once  concise  and  dry  possesses  little  or  no  energy,  but  rather 
chills  and  repels  the  hearer,  unless  the  ideas  which  it  con- 
veys are  sufficiently  interesting  and  important  to  render  any 
clear  expression  of  them  acceptable  to  him.  An  elegant 
and  copious  style  attains  the  opposite  extreme,  exhibiting 
whatever  energy  the  speaker  or  his  thoughts  are  able  to 
exert  upon  the  impulses  and  volitions  of  his  hearer.  Style,  as 
to  its  energy,  is  simple,  moderate,  or  sublime.  In  a  simple 
style  the  speaker  is,  and  seems  to  be,  occupied  entirely  with 
the  current  of  his  thoughts.  He  abandons  himself  to  the 
natural  flow  of  words  which  they  suggest,  and  makes  no  visi- 
ble effort  to  create  strong  impressions.  While  his  language 
is  copious  enough  to  render  his  meaning  intelligible,  and  is 
often  spirited  and  forcible,  his  figures  are  few  and  common- 
place, and  couched  in  easy  and  familiar  phraseology.  In 
this  style  are  thus  united  the  plain  and  the  concise,  although 
the  latter  attribute  yields  to  its  opposite  whenever  a  greater 
quantity  of  language  becomes  necessary  in  order  to  the  com- 
plete conveyance  of  the  thought.  Although  this  is  the  most 
difficult  style  to  acquire,  yet  such  is  its  consummate  art  that 
the  hearer  always  feels  as  if  he  would  himself  have  spoken 
on  the  subject  in  the  same  manner  as  the  orator  has  done. 
This  renders  it  pre-eminently  effective  for  oratorical  purposes, 
since  it  puts  the  auditor  in  good  humor  with  himself  as  well 
as  with  the  speaker,  and  concentrates  his  interest  on  the 
thoughts  which  are  presented  to  him.  It  is,  therefore,  the 
style  especially  adapted  for  instruction  and  argument,  for  the 
narration  of  less  important  facts,  and  for  the  discussion  and 
explanation  of  abstract  principles  and  rules.  A  moderate 
style  combines  the  neat  with  the  concise  or  temperately  dif- 

17  257 


§  301  FORENSIC   ORATORY. 

fuse.  Richer  in  ornament  than  the  simple  style,  and  em- 
ploying all  the  figures  of  words  and  most  of  those  of  thought, 
it  nevertheless  subordinates  its  language  to  the  thoughts  ex- 
pressed, and  makes  no  apparent  effort  to  arouse  the  emotions 
or  to  sway  the  will.  Its  manner  is  sweet  and  calm,  its  diction 
polished  and  ingenious,  its  wit  brilliant  and  graceful,  its  utter- 
ance harmonious  and  strong.  Its  office  is  to  interest  and 
please.  It  is  suited  for  long  and  exact  discussions,  which,  if 
conducted  in  the  simple  style,  would  become  wearisome  ;  for 
common  topics  where  no  vehemence  is  to  be  displayed  ;  and 
for  all  parts  of  an  oration  which  are  intended  rather  to  con- 
ciliate than  to  persuade.  A  sublime  style  is  the  union  of  the 
elegant  with  the  diffuse,  or  in  pathetic  passages  with  the  con- 
cise. It  is  profuse  in  ornament,  majestic  in  the  strength  and 
harmony  of  its  sentences,  splendid  in  its  diction,  impetuous 
and  overwhelming  in  its  assertions  and  appeals.  It  is  adapted 
to  few  subjects,  is  appropriate  only  when  the  thoughts  of  the 
speaker  and  the  mental  condition  of  the  hearers  justify  its 
use,  and  cannot  be  long  sustained  without  exhausting  the 
speaker  and  producing  a  revulsion  of  feeling  in  the  hearer. 
When  employed,  as  it  must  be  where  a  direct  attack  is  made 
upon  the  feelings  and  volitions  of  the  auditor,  the  ideas 
which  it  expresses  should,  therefore,  be  interspersed  with 
others  which  can  be  conveyed  in  a  less  energetic  style. 
For  true  eloquence,  whether  in  speaking  or  in  writing,  re- 
quires not  only  that  the  style  should  suit  the  subject,  but 
that  various  subjects  with  their  proper  styles  should  so  alter- 
nate that  the  mind  of  the  hearer  or  the  reader  will  be  ever 
on  the  alert,  and  be  as  constantly  experiencing  new  emotions 
as  he  is  receiving  new  ideas. 

§  302.    Style  of  Oration  :  Propriety. 

The  style  of  an  oration  must  be  appropriate  to  the  hearer, 
the  occasion,  and  the  subject.     As  the  sole  purpose  of  ora- 
tory is  to  move  the  will  of  the  hearer,  and  as  the  value  of 
258 


OF   STYLE.  §  302 

any  style  in  oratory  resides  in  the  assistance  which  it  renders 
in  producing  this  effect,  the  final  test  of  a  good  style  in  ora- 
tory must  be  found  in  its  appropriateness  to  the  hearer.  To 
a  cold,  self-contained  auditor,  no  subject  however  important, 
no  occasion  however  impressive,  will  make  acceptable  the 
gorgeous  rhetoric  and  vehement  delivery  of  the  sublime  style, 
and  if  it  does  not  excite  his  wonder  at  the  extravagances  of 
the  orator,  it  is  certain  to  inspire  him  with  suspicion  or  dis- 
gust. On  the  other  hand  an  audience  of  impulsive,  gen- 
erous, imaginative  natures  will  be  attracted  toward  and 
controlled  by  him  in  proportion  as  his  style  approaches 
the  sublime,  no  matter  what  may  be  the  subject  or  occa- 
sion. In  determining  the  style  of  an  oration,  the  character 
and  attitude  of  the  hearers  is  thus  first  to  be  considered,  and 
that  style  adopted  which  is  likely  to  be  most  acceptable  to 
them.  Next  to  this  primary  direction,  the  style  must  be 
determined  by  the  occasion.  In  discussing  any  subject, 
social,  political,  or  religious,  before  a  limited  audience  and 
on  an  informal  occasion,  a  style  would  be  bombastic  and 
ridiculous  which,  in  a  set  oration  to  a  vast  assemblage  and  on 
some  great  festival,  would  be  both  proper  and  effective.  No 
sagacious  statesman  carries  into  the  village  caucus  the  florid 
rhetoric  with  which  he  adorns  the  public  platform  and  the 
legislative  hall,  no  powerful  preacher  echoes  in  the  house- 
hold prayer-meeting  the  thunders  of  his  pulpit,  although  on 
both  occasions  the  topics  and  the  purposes  of  the  orations 
may  be  the  same.  Regard  to  the  occasion,  therefore,  must 
precede  that  to  the  subject,  and  the  style  be  chosen  as  it 
may  demand.  The  requirements  of  the  hearer  and  the 
occasion  being  satisfied,  the  character  of  the  subject  fur- 
nishes the  remaining  indication.  When  of  no  special  interest 
except  to  the  intellect  and  judgment,  a  simple  style  should 
be  adopted.  Where  it  possesses  moral  qualities  which  ought 
to  operate  somewhat,  though  not  intensely,  on  the  feelings, 
the  moderate  style  is  suited  to  its  presentation.     When  it 

259 


$  302  FORENSIC   ORATORY. 

appeals  directly  and  supremely  to  the  heart  and  will,  the  style 
must,  in  some  passages  at  least,  become  sublime. 

§  303.    Style  in  Forensic  Oratory. 

To  the  advocate  the  same  variety  of  subjects,  hearers,  and 
occasions  is  presented  as  to  any  other  class  of  orators,  and 
the  style  to  be  adopted  for  his  speech,  in  any  given  case, 
must  be  determined  by  the  same  considerations.  In  the 
great  majority  of  cases  it  is  doubtless  true  that  the  jury  is 
composed  of  men  of  average  temperament,  that  the  occasion, 
although  dignified,  is  rarely  solemn,  that  the  subject,  even 
when  pecuniarily  important,  is  in  its  nature  insignificant,  and 
therefore  that  a  simple,  or  at  best  a  moderate  style,  is  most 
appropriate.  Still  there  are  also  cases  where  the  decision  of 
the  issue  involves  tremendous  consequences,  where  the  occa- 
sion is  only  less  momentous  than  those  on  which  the  fates  of 
nations  hang,  and  where  no  style  but  the  sublime  could  satisfy 
the  instincts  of  the  hearers,  or  with  proper  energy  commu- 
nicate the  advocate's  ideas.  No  universal  rule  concerning 
style  exists  in  reference  to  forensic  or  to  any  other  form  of 
oratory,  except  that  it  must  be  appropriate ;  and  that  when 
the  character  of  the  hearers  or  of  the  occasion  affords  no 
better  guide,  the  simple  style  should  be  employed  in  proving, 
the  moderate  in  pleasing,  and  the  sublime  in  all  direct  attempts 
to  rouse  the  feelings  and  control  the  will. 

§  304.    Style :  Acquisition  of. 

The  acquisition  of  these  different  styles,  and  of  wisdom  in 
selecting  and  combining  them,  is  effected  by  studying  good 
models  and  by  constant  practice  in  writing.  In  the  still  un- 
surpassed orations  of  antiquity,  some  of  which  are  familiar  to 
almost  every  schoolboy,  are  found  examples  of  elegance  in 
diction,  of  strength  and  harmony  in  sentences,  and  of  the 
proper  use  of  nearly  every  figure  and  device  of  rhetoric  ;  and 
though  to  one  who  reads  them  in  translations  their  verbal 
260 


OF  STYLE.  §  304 

excellence  and  sweetness  are  in  a  great  measure  lost,  enough 
is  gained  to  make  their  constant  study  a  most  profitable  labor. 
The  want  they  leave  unsatisfied  should  be  supplied  by  the 
great  Anglo-Saxon  advocates  and  orators,  whose  legislative 
and  forensic  speeches  exhibit  every  art  and  grace  of  language, 
and  rival  the  renowned  productions  of  the  ancient  world.  To 
make  the  treasures  thus  unveiled  his  own,  and  so  incorporate 
them  into  his  habitual  speech  that  they  will  fall  spontane- 
ously from  his  lips  whenever  an  occasion  for  their  use  arises, 
practice  in  writing,  according  to  the  lessons  taught  him  by 
those  examples,  is  essential  to  the  advocate.  "  If  what  is 
meditated  and  considered,"  says  Cicero,  "  easily  surpasses 
sudden  and  extemporary  speech,  a  constant  and  diligent 
habit  of  writing  will  surely  be  of  more  effect  than  meditation 
and  consideration  itself,  since  all  the  arguments  relating  to  a 
subject,  whether  suggested  by  art  or  by  a  certain  power  of 
genius  and  understanding,  will  present  themselves  and  occur 
to  us  while  we  examine  and  contemplate  it  in  the  full  light  of 
our  intellect ;  and  all  the  thoughts  and  words  which  are  the 
most  expressive  of  their  kind  must  of  necessity  come  under 
and  submit  to  the  keenness  of  our  judgment  while  writing ; 
and  a  fair  arrangement  and  collocation  of  the  words  is  effected 
by  writing  in  a  certain  rhythm  and  measure,  not  poetical,  but 
oratorical.  These  are  the  qualities  which  bring  applause  and 
admiration  to  good  orators  ;  nor  will  any  man  ever  attain 
them  unless  after  long  and  great  practice  in  writing,  however 
resolutely  he  may  have  exercised  himself  in  extemporary 
speeches."  And  Quintilian  asserts :  "  In  writing  are  the 
roots,  in  writing  are  the  foundations  of  eloquence.  By  writ- 
ing resources  are  stored  up,  as  it  were,  in  a  sacred  reposi- 
tory, whence  they  may  be  drawn  forth  for  sudden  emergencies 
or  as  circumstances  require."  No  better  subjects  for  such 
practice  can  be  found  than  the  orations  which  he  studies  as 
his  models.  To  prepare  sketches  of  these,  preserving  all  the 
ideas  of  the  orator,  but  rejecting  his  words,  and  around  such 

261 


§  304  FORENSIC   ORATORY. 

skeletons  to  build  orations  of  his  own,  in  his  own  language, 
with  his  own  figures,  elaborating  and  refining  every  part  until 
his  rhetorical  ability  can  produce  no  higher  perfection  of 
style,  and  then  to  compare  his  work  with  his  models,  noting 
the  differences  in  expression,  and  correcting  his  in  the  light 
gained  by  the  comparison,  gradually  transfers  their  excel- 
lences to  him  and  renders  them  the  ready  vehicles  of  his 
ideas.  His  practice,  however,  must  on  no  account  be  lim- 
ited to  the  productions  of  one  orator,  unless  it  is  his  aim  to 
discipline  himself  into  a  servile  copyist,  rather  than  to  acquire 
the  virtues  and  the  powers  of  all  his  predecessors. 


262 


OF  ARRANGEMENT.  §  305 


BOOK  III. 

OF   ARRANGEMENT. 

§  305.    Arrangement :  its  Importance. 

With  the  act  of  expression  the  orator  completes  the  prep- 
aration of  the  materials  to  be  employed  in  his  oration.  It 
then  remains  for  him  to  present  them  to  his  hearers  in  a 
manner  adapted  to  produce  the  desired  impressions  on  their 
intellects,  impulses  and  wills.  The  first  step  in  this  process 
is  the  act  of  arrangement,  or  the  disposal  of  these  materials 
in  such  succession  that  each  idea  may  derive  additional 
strength  and  clearness  from  those  which  precede  and  follow 
it,  and  that  the  oration  as  a  whole  may  be  progressive,  ener- 
getic, and  harmonious.  This  due  arrangement  is  of  supreme 
importance  in  all  spoken  compositions.  Without  it,  the 
more  numerous  and  forcible  are  the  thoughts  expressed  by 
the  orator  the  worse  are  the  confusion  and  perplexity  into 
which  the  hearer  is  precipitated  ;  his  first  impressions  are 
obliterated  by  later  ones,  which  should  have  fortified  and 
deepened  them  ;  the  central  point  of  the  oration  is  obscured 
by  others  to  which  equal  prominence  is  given  ;  and  its  pur- 
pose thwarted  by  the  very  agencies  which,  if  wisely  handled, 
would  have  assured  success.  Without  it  also  the  orator  finds 
himself  embarrassed  by  the  very  wealth  of  his  accumulations ; 
his  ideas  crowd  together  in  his  mind ;  their  connections  and 
relations  disappear ;  he  is  in  doubt  where  to  begin  and 
where  to  close ;  and  even  if  he  finally  communicates  all  he 
sought  to  utter,  he  is  never  certain  that  he  has  produced 
upon  the  hearer  the  impression  he  intended,  or  done  any 
credit  to  himself  or  to  his  theme.     The  contrast,  both  to  lis- 

263 


§  305  FORENSIC   ORATORY. 

tener  and  speaker,  between  orations  delivered  on  the  spur  of 
the  moment  by  men  whose  habitual  methods  have  not  been 
already  formed  according  to  the  rules  of  oratorical  arrange- 
ment, and  orations  delivered  by  the  same  persons  on  the 
same  subjects  after  reflection  and  comparison  have  enabled 
them  to  express  their  thoughts  in  proper  sequence,  affords 
the  most  conclusive  demonstration  of  the  importance  of  this 
step  in  the  art  of  oratory. 

§  306.    Arrangement :  its  Method. 

A  perfect  oration  consists  of  four  parts,  arranged  in  the 
following  order:  (1)  The  Exordium,  or  Proem;  (2)  The 
Statement  and  Partition ;  (3)  The  Proof  and  Refutation ; 
(4)  The  Peroration.  No  oratorical  effect  can  be  produced 
upon  the  mind  of  a  hearer  unless  the  purpose  of  each  of  these 
parts  thus  arranged  is  in  some  mode  accomplished.  When, 
therefore,  he  depends  entirely  on  the  oration  for  such  effect, 
every  part  must  be  present  and  completely  occupy  the  field 
to  which  it  is  appropriated.  But  when  he  has  derived 
from  other  sources  some  of  the  impressions  which  one  of 
these  parts  is  intended  to  create,  it  may  be  correspondingly 
curtailed.  Thus  in  forensic  oratory,  if  all  the  facts  bearing 
upon  the  controversy  have  been  presented  to  the  jury  by  the 
testimony,  or  in  preceding  arguments,  the  advocate  may 
properly  confine  his  statement  to  a  mere  allusion  to  them, 
where  otherwise  they  must  have  been  recited  in  detail. 
Still,  even  in  such  cases,  each  of  these  parts  must  to  some 
extent  appear,  and  the  sequence  of  the  thoughts  and  their 
impressions  be  preserved. 


264 


OF  THE  EXORDIUM.  §  308 


CHAPTER  I. 

OF  THE   EXORDIUM. 

§  307.    Exordium :  its  Necessity. 

The  use  of  an  exordium  is  dictated  both  by  nature  and  by 
custom.  Every  discourse,  which  has  a  fixed  purpose  in  view, 
begins  with  a  remark  intended  to  prepare  the  hearer  for  the 
request  or  demand  that  follows  j  and  this  occurs  as  uniformly 
in  spontaneous  appeals  as  in  those  deliberately  formulated 
according  to  the  rules  of  art.  An  abrupt  commencement, 
seizing  as  by  force  the  attention  of  the  hearer,  and  con- 
straining him  to  listen,  inevitably  arouses  his  instinct  of  self- 
defence,  and  alienates  him  from  the  speaker.  Only  when 
an  oration  is  one  of  a  series  of  circumstances  operating  to 
the  same  common  end,  and  is  so  linked  with  those  which 
have  preceded  it  that  they  perform  the  office  of  an  introduc- 
tion, should  the  formal  exordium  be  omitted  ;  and  even  then 
some  fitting  sentence  should  lead  the  mind  from  what  has 
been  declared  or  done  to  the  propositions  which  are  now  to 
be  submitted. 

§  308.    Exordium  :  its  Purposes. 

The  purposes  of  an  exordium  are  three:  (1)  To  concili- 
ate the  hearer  ;  (2)  To  attract  his  attention  ;  (3)  To  interest 
him  in  the  subject  of  discussion.  It  is  the  aim  of  oratory  to 
take  possession  of  the  auditor  in  his  condition  of  indifference 
or  hostility,  and  guide  him  into  a  state  of  active  favor  and 
co-operation.  The  possession  which  it  takes,  the  guidance 
it  affords,  can  never  be  effective  if  the  auditor  perceives  that 
they  are  being  forced  upon  him  by  the  orator,  and  that  an 
attempt  is  being  made  to  override  his  judgment  or  his  will. 

265 


§  308  FORENSIC   ORATORY. 

What  the  orator  must  seek  and  must  obtain,  before  he  can 
advance  one  step  toward  his  end,  is  the  voluntary  but  uncon- 
scious surrender  of  his  audience  to  his  direction  and  con- 
trol; and  this  he  can  secure  only  by  creating  in  them  a 
friendly  and  confiding  disposition  toward  himself,  and  to- 
ward those  whose  interests  or  positions  are  identified  with 
his.  Again,  as  the  reception  and  comprehension  of  ideas 
depend  upon  the  attention  which  the  hearers  devote  to  their 
statement  and  explanation  by  the  speaker,  it  is  essential  that 
their  minds  should  be  withdrawn  from  other  subjects  and 
concentrated  upon  that  which  is  to  be  submitted  to  their  judg- 
ment. And  finally,  since  the  measure  of  their  attention  and 
the  completeness  of  their  self-surrender  are  to  a  great  extent 
determined  by  their  own  desire  to  understand  the  subject, 
and  to  ascertain  what  action  concerning  it  their  duty  or  their 
welfare  may  require,  the  orator  must  at  the  outset  excite  this 
desire,  and  give  them  reason  to  anticipate  its  speedy  gratifi- 
cation. All  these  purposes  it  is  the  office  of  the  exordium 
to  serve.  To  these  its  thoughts,  its  language,  its  style,  and 
its  delivery  are  exclusively  directed,  and  when  it  accomplishes 
these  it  becomes  the  most  important  and  effective  part  of  the 
oration,  not  yielding  even  to  the  peroration  or  the  argument 
in  the  measure  of  its  influence  upon  the  ultimate  decision  of 
the  hearer.  In  forensic  more  than  in  any  other  form  of  ora- 
tory is  it  of  inestimable  value,  for  the  gulf  between  the  jury 
and  the  advocate  is  wider  than  that  between  any  other 
speaker  and  his  audience ;  their  knowledge  of  his  purpose 
to  persuade  or  force  them  to  support  the  claims,  to  which 
his  own  allegiance  is  pledged,  naturally  repels  and  puts  them 
on  their  guard ;  while  their  acquaintance  with  the  cause, 
derived  from  witnesses  and  previous  orators,  renders  their 
curiosity  less  ardent,  and  their  indifferent  or  hostile  disposi- 
tion more  difficult  to  alter  or  remove. 


266 


OF  THE  EXORDIUM.  §  309 

§  309.     Exordium:  its  Subjects. 

To  effect  all  these  purposes,  the  subject  of  the  exordium 
must  be  embraced  in  or  related  to  the  oration  itself.  To 
conciliate  the  hearers,  and  attract  their  attention,  it  might 
indeed  suffice  to  commence  with  any  topic  which,  in  itself 
or  by  its  mode  of  treatment,  could  fix  their  minds  upon  the 
thoughts  expressed,  and  establish  sympathies  between  them 
and  the  speaker.  But  the  third  purpose  of  the  exordium, 
and  not  the  least  important,  would  then  be  unfulfilled.  The 
interest  and  sympathy  excited  are  useful  to  the  orator  only 
when  directed  toward  the  object  which  his  entire  oration  is 
intended  to  promote,  and  this  must  be  accomplished  by  the 
same  act  which  excites  them,  or  their  favorable  influence  is 
dissipated  and  forever  lost.  Hence  an  exordium,  taken  from 
a  subject  commonplace  or  equally  suited  to  all  orations, 
necessarily  fails  in  every  one  of  its  three  purposes,  and  an 
opportunity  is  thereby  thrown  away  which  can  never  be  again 
presented.  In  forensic  oratory,  the  subject  of  the  exordium 
is  derived  from  the  cause  at  bar  or  from  some  of  its  attend- 
ant circumstances.  Of  such  subjects  there  are  always  many, 
and  for  convenience  of  selection  they  may  be  grouped  under 
the  following  heads :  ( 1 )  The  client,  his  character,  position, 
age,  sex,  financial  condition,  or  the  effect  of  an  unfavorable 
judgment  upon  him  or  his  family ;  (2)  The  adverse  party, 
his  power,  malice,  or  meanness;  (3)  The  advocate  himself, 
the  motives  with  which  he  undertook  the  cause,  as  from 
charity,  friendship,  or  patriotism,  his  inability  to  do  it  justice 
against  such  formidable  adversaries,  or,  if  he  is  well  known  to 
the  jury  as  a  careful  and  upright  man,  his  own  confidence 
in  the  righteousness  of  his  claims  ;  (4)  The  opposing  advo- 
cates, their  experience  and  skill,  their  recognized  ability  to 
make  the  worse  appear  the  better  reason,  and  his  fear  for 
the  result  were  not  the  merits  of  his  own  side  so  apparent ; 
(5)  The  jury,  their  patience  in  listening,  their  prudence  in 
judging,  their   exalted  station,   their  love   of  justice,   their 

267 


§  309  FORENSIC   ORATORY. 

fidelity  to  duty,  the  effect  of  the  decision  on  their  peace  of 
conscience  or  their  public  reputation ;  (6)  The  cause,  its 
importance  or  difficulties,  the  state  of  public  opinion  and  ex- 
pectation concerning  it,  the  place  or  time  of  trial;  (7)  Any 
notable  incident  of  the  trial ;  (8)  Some  pertinent  asser- 
tion or  admission  in  the  oration  of  the  opposing  advocate. 
Not  more  than  one  of  these  subjects  should  be  employed, 
and  that  one  the  most  useful  in  view  of  all  the  circumstances 
under  which  the  oration  is  delivered.  Nor  should  anything 
be  stated  concerning  which  there  can  be  any  doubt  or  denial, 
nor  any  accusation  made  against  an  adversary  unless  its 
truth  is  evident  without  argument  or  proof. 

§  310.    Exordium :   Selection  of  Subject. 

In  the  selection  of  a  subject  for  his  exordium,  the  orator 
should  be  guided  by  these  considerations:  (1)  The  nature 
of  the  claim  he  is  about  to  urge  upon  the  hearers;  (2)  The 
dispositions  of  the  persons  to  whom  his  appeal  is  to  be  ad- 
dressed ;  (3)  The  character  and  condition  of  the  persons 
for  or  against  whom  he  is  to  speak ;  (4)  The  circumstances 
attending  the  oration  ;  and  (5)  The  prepossessions  and  preju- 
dices of  his  auditory  and  the  public.  Suitable  for  the  intro- 
duction of  the  principal  discourse  it  must  be,  for  the  reasons 
already  stated ;  accommodated  to  the  dispositions  of  the 
hearers,  or  it  will  not  excite  attention  nor  awaken  sympathy ; 
adapted  to  the  persons  and  facts  involved,  or  its  apparent  in- 
consistency will  thwart  the  purposes  it  was  designed  to  serve ; 
calculated  to  allay  prejudice  and  stimulate  good  will,  or  its 
conclusion  leaves  the  hearer  distant  and  unmoved.  The 
first  impression  which  in  view  of  all  these  circumstances  it  is 
necessary  to  make  upon  the  hearer,  and  the  idea  whose 
presentation  will  most  certainly  and  quickly  produce  that 
impression,  are  here  the  object  of  his  search,  and  when  dis- 
covered constitute  the  aim  and  theme  of  his  exordium. 


268 


OF   THE   EXORDIUM.  §311 

§  311.    Exordium  :    its  Preparation. 

It  is  apparent  that  no  introduction  can  be  properly  pre- 
pared until  the  matter  to  be  introduced  is  fully  understood. 
Hence  the  rule,  that,  of  all  parts  of  the  oration,  the  last  to  be 
composed  is  the  exordium.  The  reasons  for  this  are  obvious 
and  manifold.  The  substance  of  an  oration  is  contained  in 
the  statement,  proof,  and  refutation.  These  must  necessarily 
be  complete,  comprising  every  thought  which  forms  a  portion 
of  the  argument.  Persuasive  energies  are  exercised  in  these 
and  in  the  peroration,  and  whatever  arts  the  orator  may  use 
to  stimulate  the  emotions,  and  to  move  the  will  toward  the 
contemplated  act,  are  there  displayed.  All  the  materials  that 
are  needed  to  accomplish  the  main  purpose  of  the  oration 
are  thus  absorbed  in  these  substantial  parts,  and  as  the  exor- 
dium must  not  anticipate  but  merely  pave  the  way  for  their 
discussion,  it  must  be  framed  from  the  materials  remaining 
after  these  are  finished.  Then  for  the  first  time,  also,  can 
the  orator  determine  which  of  all  his  available  materials  is 
fitted  to  precede  the  substance  of  his  speech,  and  lead  his 
hearers  to  the  readiest  acceptance  of  his  demonstration  and 
appeal.  To  compose  the  exordium  in  advance  commits  the 
orator  to  a  current  of  thought  which  colors  the  entire  oration, 
subordinates  its  substantial  to  its  formal  parts,  weakening  the 
demonstration  and  forestalling  the  appeal.  For  the  most 
prominent  and  valuable  ideas  which  he  possesses*  come  first 
to  his  mind  when  he  attempts  to  put  his  meditations  into 
words,  and  though  these  may  be  indispensable  for  convincing 
or  persuading,  they  will  almost  inevitably  escape  into  his  in- 
troduction if  he  first  prepares  it,  and  either  compel  him  to 
repeat  his  thoughts,  or  to  omit  them  where  they  are  most 
useful,  or  to  rewrite  his  exordium  after  the  other  parts  have 
been  completed.  This  last  misfortune  is  not,  however,  much 
to  be  deplored.  For  no  exordium  can  be  too  many  times 
rewritten  or  too  carefully  revised.  Of  all  parts  of  a  speech 
it  is  the  one  on  which  the  ancient  orators  expended  skill  and 

269 


§  311  FORENSIC   ORATORY. 

labor,  varying  its  ideas  and  expressions,  changing  the  order 
of  its  words,  striving  in  every  way  to  make  it  catch  the  ears 
and  win  the  favor  of  their  hearers. 

§  312.    Exordium  :   its  Style :  its  Delivery. 

An  exordium  should  be  concise,  and  its  length  propor- 
tionate to  that  of  the  oration.  Often  a  single  sentence  is 
sufficient ;  and  it  should  never  be  so  protracted  as  to  detain 
the  hearer  from  the  subject  of  discourse  after  he  is  once 
ready  to  consider  it.  Its  language  must  be  correct  and 
clear,  easy  and  natural;  its  style  devoid  of  ornament,  yet 
lively  and  pleasing ;  its  form  not  argumentative  nor  ener- 
getic, but  rather  reminiscent  or  descriptive.  Its  opening 
sentence  should  be  short ;  its  closing  one  connect  it  with  the 
statement  which  succeeds.  The  delivery  of  an  exordium 
must  be  suited  to  its  style.  The  manner  of  the  orator 
should  be  modest,  dignified,  and  calm,  free  from  all  affec- 
tation or  apparent  self-assertion  ;  his  utterance  slow  and 
quiet,  and  his  gestures  few.  Departure  from  this  rule  is 
justified  when  to  the  highly  wrought  emotions  of  the  audi- 
ence some  sudden  burst  of  passion  is  appropriate  ;  but  those 
occasions  are  infrequent,  and  splendid  is  the  genius  by  which 
alone  they  can  be  adequately  improved. 


270 


OF  THE   STATEMENT    AND    PARTITION.      §314 


CHAPTER  II. 

OF   THE   STATEMENT  AND   PARTITION. 

§  313.    The  Statement  :    its  Purpose  and  Necessity. 

The  second  part  of  an  oration  is  the  Statement  or  narration, 
with  the  Partition  in  which  it  naturally  terminates.  The  state- 
ment is  an  explanation  of  the  subject  out  of  which  arise  the 
propositions  that  are  to  be  submitted  to  the  hearers.  Its 
principal  purpose  is  to  enable  them  to  comprehend  the  ac- 
tion which  the  orator  desires  them  to  perform,  and  the  rea- 
sons for  acceding  to  his  wishes ;  but  it  serves  also  as  a  mode 
of  demonstrating  the  truth  of  his  positions  by  appealing  to 
their  experience  and  common  sense,  and  by  its  matter,  style, 
and  manner  of  delivery  often  exerts  a  strong  persuasive  in- 
fluence. It  is  necessary  even  when  all  the  details  of  the 
subject  are  familiar  to  the  hearers,  since  every  subject  can  be 
viewed  in  different  aspects,  some  more  and  some  less  favora- 
ble to  the  orator's  design,  and  it  is- now  his  object  to  present 
them  in  that  aspect  which  best  supports  his  claims. 

§  314.    The  Statement:    its  Subject. 

The  subject  of  the  statement  embraces  all  the  circumstances 
which  can  elucidate  the  questions  propounded  by  the  orator, 
or  aid  in  their  determination.  In  deliberative  oratory  these 
circumstances  may  be  numerous,  extending  over  long  periods 
of  time,  and  ramifying  into  multitudinous  details.  But  in 
forensic  oratory  they  are  confined  within  the  limits  of  the 
controversy  which  the  judge  or  jury  are  expected  to  decide. 
If  the  issue  is  of  law,  those  facts  to  which  the  legal  question 
appertains  alone  require  to  be  narrated.  When  the  issue  is 
of  fact,  the  statement  covers  every  incident  which  renders  the 

271 


§314  FORENSIC   ORATORY. 

nature  of  the  controversy  more  apparent,  or  supports  the 
claims  presented  by  the  advocate. 

§315.    The  Statement:   its  Qualities:    Truthful. 

In  order  to  accomplish  its  various  purposes  the  state- 
ment must  be  :  (i)  Truthful;  (2)  Probable;  (3)  Favorable; 
(4)  Clear;  (5)  Brief;  and  (6)  Pleasing  to  the  hearer.  Of 
these,  the  primary  requisite  is  truthfulness.  Nothing  can  more 
utterly  destroy  that  unity  of  thought  and  feeling  between  a 
speaker  and  his  audience,  on  which  his  success  so  largely 
depends,  as  to  be  detected  in  an  endeavor  to  mislead  them. 
They  expect  from  him  a  full  acquaintance  with  the  facts, 
since  he  assumes  to  discuss  them,  and  an  honest  statement 
of  them,  since  he  engages  in  the  occupation  of  instructing 
others ;  and  when  they  discover  either  his  ignorance  or  in- 
sincerity, this  expectation  is  not  merely  disappointed,  but  is 
changed  into  a  contempt  and  indignation  which  are  more 
potent  to  defeat  his  claims  than  any  argument  that  could  be 
adduced  against  them.  Moreover,  his  departure  from  the 
truth  is  nearly  always  made  apparent  before  the  controversy 
is  determined.  The  facts  which  he  narrates  are  never  ex- 
clusively within  his  knowledge ;  and  in  reference  to  every 
proposition  which  is  open  to  dispute,  he  is  almost  certain  to 
encounter  some  antagonist  who  will  challenge  his  assertions, 
and  expose  his  falsehood.  To  a  forensic  orator,  an  untruth- 
ful statement  is  attended  with  especial  dangers.  Not  only  is 
his  responsibility  as  an  instructor  and  adviser  of  the  jury  in- 
creased by  his  official  oath,  and  the  solemnity  of  the  occasion 
in  which  he  participates,  but  the  immediate  tests  of  his  fidelity 
and  honor  are  spread  out  before  them  in  the  testimony  of  the 
witnesses  and  the  results  of  their  own  observation,  while  vigi- 
lant enemies  surround  him  to  take  advantage  of  his  errors. 
Under  such  circumstances,  to  vary  from  the  truth  in  any  item 
of  his  statement  is  worse  than  folly.  On  the  contrary,  the 
facts  which  aid  him,  and  the  facts  which  harm  him,  should 
272 


OF  THE   STATEMENT  AND    PARTITION.      §  316 

be  alike  narrated.  Disputed  facts  may  be  described  accord- 
ing to  his  own  idea  of  their  character,  but  with  the  admission 
that  a  different  view  is  taken  by  his  adversary.  Whether  the 
evidence  precedes  the  statement,  or  is  yet  to  be  produced, 
the  jury  must  be  able  to  perceive,  when  they  compare  the 
evidence  and  statement  with  each  other,  that  he  has  sup- 
pressed nothing,  and  has  made  no  affirmation  or  denial  which 
their  own  convictions  of  the  truth  do  not  corroborate. 

§316.    The  Statement:    Probable. 

The  statement  must  not  only  be  intrinsically  true,  it  must 
be  also  probable ;  that  is,  it  must  seem  true  to  the  hearers. 
Where  an  auditor  already  knows  the  facts,  a  statement  which 
is  truthful  will,  of  course,  be  probable.  But  where  he  has  not 
yet  discovered  them,  or  has  not  considered  them  in  their  re- 
lations to  the  present  subject,  his  knowledge  of  them,  or  of 
their  significance,  must  be  derived  in  the  first  instance  from 
the  orator ;  and  it  is  then  the  purpose  of  the  orator,  not 
merely  to  state  facts  as  they  are,  but  by  his  mode  of  state- 
ment to  make  his  auditor  believe  that  they  are  as  he  states 
them.  A  narrative  seems  true  when  the  facts  described  ap- 
pear to  have  occurred  according  to  the  course  of  nature,  and 
as  the  hearer's  own  experience  would  lead  him  to  expect.  To 
give  this  character  to  a  narrative,  such  qualities  and  condi- 
tions must  be  attributed  to  things  and  persons  as  would  ren- 
der them  liable  to  do  or  suffer  what  is  predicated  of  them  ; 
adequate  causes  must  be  assigned  for  all  events ;  sufficient 
motives  must  be  pointed  out  for  each  important  action  ;  and 
every  circumstance  of  time,  place,  or  occasion  calculated  to 
elicit  or  produce  the  incidents  described  must  be  portrayed. 
The  details  of  the  transaction  must  be  so  connected  that  one 
prepares  the  way  for,  or  explains,  or  corroborates  another, 
and  in  the  recital  of  disputed  points  simple,  short  arguments, 
based  upon  general  propositions,  must  be  interwoven  when- 
ever opportunity  is  offered. 

18  273 


§317  FORENSIC    ORATORY. 

§  317.    The  Statement :  Favorable. 

Many  facts  may  be  made  to  appear  in  a  favorable  or 
unfavorable  light  merely  by  describing  them  in  different  lan- 
guage. Others,  essentially  unchangeable  in  character  and 
aspect,  may  by  the  same  method  be  minimized  or  magnified, 
and  thus  rendered  less  harmful  or  more  helpful  to  the  cause 
of  the  narrator.  One  purpose  of  an  orator,  and  particularly 
of  an  advocate,  is  by  his  statement  to  give  the  facts  related  a 
coloring  favorable  to  his  side  of  the  controversy,  without  de- 
parting from  truth  and  probability.  This  is  accomplished 
by  amplifying  and  exaggerating  matters  which  support  his 
claims,  by  condensing  and  extenuating  those  which  contradict 
them,  by  connecting  facts  apparently  adverse  with  those 
which  qualify  their  hostile  influence,  by  attributing  unlawful 
actions  to  an  upright  motive  or  referring  to  some  other  inci- 
dent as  their  excuse  or  justification.  But  caution  is  neces- 
sary, lest  some  manifest  overstatement  or  undue  depreciation 
of  the  facts  arouse  the  auditor's  suspicions  that  the  orator  is 
endeavoring  to  convey  a  false  impression  of  the  actual  trans- 
action. To  prevent  this,  it  is  often  prudent  to  insert  into 
the  statement,  from  time  to  time,  a  frank  admission  of  some 
unfavorable  but  not  important  fact ;  following  this,  however, 
with  a  vivid  presentation  of  prominent  and  favorable  facts, 
in  order  to  counteract  the  bad  impressions  made  by  the 
admission. 

§  318.   The  Statement :  Clear. 

Clearness  and  brevity  are  the  qualities  which  render  a 
statement  intelligible.  Clearness  requires,  here  as  elsewhere, 
the  use  of  correct  words  and  properly  constructed  sentences. 
Descriptions  of  persons,  acts,  and  objects  must  be  accurate 
and  complete,  descending  into  details  of  names,  places,  dates, 
and  circumstances.  The  chronological  order  of  events,  if 
possible,  must  be  preserved,  and  when  distinct  groups  or 
series  of  facts,  each  with  its  own  chronology,  are  involved 
274 


OF   THE   STATEMENT   AND   PARTITION.      §  320 

in  the  transaction,  each  should  occupy  a  separate  division 
of  the  statement.  Unnecessary  repetition  is  to  be  avoided. 
Rhetorical  figures  which  aid  the  hearer  in  picturing  to  him- 
self the  occurrences  narrated  may  be  introduced,  but  flights 
of  fancy  into  other  regions  create  confusion  and  are  not 
permissible. 

§  319.    The  Statement :  Brief. 

Brevity  consists  in  the  rapid  movement  of  the  narrative, 
along  the  salient  points  in  the  transaction,  from  its  com- 
mencement to  its  close.  It  must  not,  however,  be  extreme, 
for  a  too  hurried  and  succinct  description  always  obscures  a 
subject,  and  more  effectually  prevents  its  apprehension  than 
one  too  diffuse  ;  while  the  effort  of  the  hearer  to  grasp  the 
fleeting  images  awakened  by  the  former  makes  it  more  tedi- 
ous to  him  than  the  easier  though  protracted  exertion  de- 
manded by  the  latter.  A  due  brevity  is  not  inconsistent 
with  clearness.  If  minute  and  trivial  incidents  are  discarded 
and  the  narrative  is  confined  to  what  are  really  significant,  if 
useless  ornaments  and  digressions  are  omitted,  and  no  per- 
ceptible attempts  are  made  to  arouse  the  feelings  of  the  hear- 
ers, the  statement  will  be  sufficiently  concise,  in  view  of  the 
other  more  essential  qualities  which  it  must  possess. 

§  320.    The  Statement:   Pleasing  to  the  Hearers. 

The  attention  and  sympathy  elicited  by  the  exordium  must 
be  perpetuated  and  intensified  by  the  statement,  to  which  the 
exordium  was  but  an  introduction.  For  this  purpose,  the 
statement  must  be  as  interesting  and  agreeable  as  the  nature 
of  the  facts  narrated  and  the  style  and  manner  of  the  orator 
can  make  it.  Every  attractive  incident  must  be  displayed  at 
length,  and  the  repulsive  barely  noticed,  or  apparelled  in  such 
words  as  will  present  them  in  a  tolerable  aspect.  Impressive 
or  pathetic  circumstances  must  be  described  in  language 
which  awakens  the  emotions,  although  appropriate  to  the 

275 


§  320  FORENSIC   ORATORY. 

quiet  tone  of  a  narrator  and  not  apparently  endeavoring  to 
touch  the  heart.  The  manner  of  the  orator  must  be  earnest 
and  sincere,  varying  with  the  changing  scenes  which  he  de- 
lineates, expressing  the  successive  feelings  which  the  contem- 
plation of  the  facts  arouses,  and  thus  inspiring  the  hearer,  in 
that  mysterious  way  which  all  experience  but  no  one  can 
define,  with  the  same  sentiments  he  seems  to  entertain. 

§  321.    The  Partition. 

The  statement  closes  with  a  sentence  summing  up  the 
previous  narrative,  briefly  outlining  the  great  central  facts, 
and  submitting  them  to  the  hearers  as  the  subject  of  dis- 
cussion. Then  follows  the  Partition,  the  clear  and  precise 
enumeration  of  the  topics,  into  which  the  subject  naturally 
divides,  in  the  order  according  to  which  they  are  now  to  be 
considered.  Except  in  cases  where  the  subject  is  incapable 
of  subdivision,  and  consequently  presents  but  one  point  for 
examination,  such  a  partition  is  always  necessary.  It  per- 
mits the  orator  to  concentrate  his  arguments  on  the  exact 
positions  they  are  intended  to  support,  to  avoid  apparent 
inconsistencies  in  his  different  claims,  and  to  arrange  his 
proof  and  refutation  in  the  manner  best  adapted  to  sus- 
tain his  cause.  It  presents  the  subject  to  the  hearers  in 
its  most  intelligible  form,  and  enables  them  to  perceive  the 
bearing  and  the  weight  of  different  proofs  and  refutations, 
to  distinguish  between  the  important  and  the  insignificant 
facts,  to  retain  them  in  their  memories,  and  to  apply  to 
them  the  proper  portions  of  the  demonstration.  Hence, 
though  occupying  so  small  a  space,  it  is  justly  regarded 
as  one  of  the  vital  parts  of  the  oration.  A  good  partition 
exhibits  the  following  characteristics:  (i)  Its  members,  taken 
together,  exhaust  the  subject;  (2)  One  member  does  not 
overlap  another;  (3)  The  members  are  not  too  numerous 
or  minute ;  (4)  Each  member  is  clear  and  brief,  and  easy 
to  recall ;  (5)  The  members  are  arranged  in  their  natural 
276 


OF   THE   STATEMENT   AND   PARTITION.      §  32 1 

order,  proceeding  from  the  simplest  to  the  more  com- 
plex ;  (6)  It  separates  the  admitted  facts  from  those  which 
are  disputed,  and  indicates  the  mode  in  which  the  latter  are 
to  be  determined.  In  general  oratory,  the  method  of  par- 
tition depends  upon  the  judgment  of  the  orator.  In  forensic 
oratory,  its  members  are  the  issues  and  their  subdivisions, 
and  its  arrangement  only  is  left  to  the  discretion  of  the 
advocate.  It  should  in  all  cases  conclude  with  a  connect- 
ing sentence,  by  which  the  attention  is  transferred  to  the 
next  succeeding  part  of  the  oration. 


277 


§  322  FORENSIC    ORATORY. 


CHAPTER   III. 

OF  THE   PROOF  AND   REFUTATION. 

§  322.    The  Proof  and  Refutation. 

The  third  part  of  an  oration  is  the  Proof  and  Refutation, 
or  that  array  of  arguments  by  which  the  orator  establishes 
the  propositions  enumerated  in  the  partition,  and  overthrows 
the  objections  of  his  adversary.  It  may  be  either  simple  or 
complex ;  simple,  when  the  partition  presents  a  single  point ; 
complex,  when  several  are  presented,  each  of  which  then 
requires  a  separate  proof  and  refutation.  This  is  the  very 
essence  of  the  oration,  the  part  on  which  success  or  failure 
ultimately  depends.  The  arguments  of  which  it  is  composed 
therefore  demand  the  highest  degree  of  diligence  in  their 
discovery,  of  ingenuity  in  their  construction,  of  prudence  in 
their  selection,  of  sagacity  in  their  arrangement,  expression, 
and  delivery. 

§  323.    The  Proof:    Discovery  of  Arguments. 

An  argument  is  a  deduction  of  the  unknown  from  the 
known.  Its  power  to  convince  a  hearer  depends  upon  the 
certainty  with  which  he  knows  the  known,  and  the  conclu- 
siveness to  his  mind  of  the  reasoning  by  which  the  unknown 
is  inferred  from  the  known.  Demonstration  by  argument 
thus  consists  in  adopting  some  fact  of  which  the  hearer  is 
certain,  or  can  be  made  certain,  and,  by  a  process  of  reason- 
ing which  he  can  understand  and  follow,  deducing  from  it 
the  fact  in  question.  The  invention  of  an  argument,  there- 
fore, involves  two  acts  :  the  discovery  of  the  known  which  is 
to  be  the  basis  of  the  inference ;  the  construction  of  the  in- 
ference itself.  The  discovery  of  the  known  is  effected  by 
278 


OF  THE  PROOF  AND  REFUTATION.    §  324 

comparing  the  proposition  to  be  proved  with  the  facts  al- 
ready accepted  by  the  hearer,  or  which  he  will  accept  upon 
their  presentation,  and  by  observing  which  of  these  are  so 
connected  with  the  proposition  that  their  existence  tends  to 
prove  its  truth.  Such  a  comparison  requires  a  perfect  com- 
prehension of  the  nature  and  limits  of  the  debated  proposi- 
tion, an  acquaintance  with  the  scope  and  content  of  the  fact 
within  the  hearer's  knowledge,  and  usually  a  careful  and  pro- 
longed investigation  of  their  various  relations  to  each  other. 

§  324.    The  Proof:   Discovery  of  Arguments   in  Forensic 
Oratory. 

In  forensic  oratory,  the  nature  and  limits  of  the  debated 
proposition  are,  in  most  cases,  easily  discovered.  When  the 
proposition  is  one  of  law,  the  known  from  which  it  is  to  be 
derived  comprises  all  those  legal  principles  and  rules  bearing 
upon  the  question  which  can  be  found  in  recognized  authori- 
ties. When  the  proposition  is  one  of  fact,  the  known  em- 
braces every  fact  within  the  knowledge  of  the  jury,  or  capable 
of  being  brought  within  their  knowledge,  from  which  the 
proposition  or  any  of  its  elements  could  be  inferred.  The 
facts  within  their  knowledge  are  those  items  of  general  in- 
formation which  all  men  possess,  phenomena  attested  by 
their  own  sensations,  and  such  details  of  the  cause  as  are 
self-evident,  or  are  admitted  by  both  parties,  or  have  been 
established  by  uncontradicted  testimony.  Facts  capable  of 
being  brought  within  their  knowledge  are  such  as  are  denied 
by  the  opposing  advocate  and  witnesses,  but  can  be  demon- 
strated by  further  arguments,  and  such  as  are  derivable  from 
known  facts  by  a  necessary  inference.  Of  these  two  classes 
of  facts  the  latter  are  in  value  and  availability  far  inferior  to 
the  former.  A  deduction  from  a  fact  already  known  to  the 
fact  involved  in  the  debated  proposition  requires  but  a  single 
mental  process,  and  if  the  reasoning  is  apparently  correct,  the 
hearer  is  immediately  satisfied  that  the  proposition  is  true.   But 

279 


§  324  FORENSIC   ORATORY. 

when  the  fact  from  which  the  final  inference  is  to  be  derived 
must  itself  be  deduced  from  some  anterior  fact,  this  duplica- 
tion of  the  reasoning  process  readily  perplexes  one  who  ap- 
prehends it  only  through  the  ear,  and,  however  sound  the 
argument  may  be,  it  seldom  produces  in  him  any  certainty 
of  knowledge.  Such  facts  should,  therefore,  never  be  re- 
sorted to  for  arguments  when  others  of  sufficient  strength 
and  number  are  accessible.  Besides  the  inherent  weakness 
of  the  arguments  which  they  supply,  the  time  spent  in  their 
demonstration,  in  the  collation  of  the  evidence  of  disagree- 
ing witnesses,  and  in  the  trivial  discussions  to  which  the 
consideration  of  inconsistent  testimony  leads,  diverts  the 
attention  of  the  jury  from  the  main  line  of  argument,  and 
gives  it  a  complexion  of  subtlety  and  inconclusiveness  which 
it  can  ill  afford  to  wear.  Therefore,  whenever  it  is  possible, 
the  advocate  should  seek  his  known  facts  among  those  which 
the  jury  know  already,  and  their  certainty  of  which  cannot  be 
shaken  by  any  contradiction  of  his  adversary.  Comparing 
these  with  the  proposition  he  maintains,  he  will,  by  proper 
study  of  their  mutual  relations,  discover  from  which  of  them 
inferences  to  support  the  proposition  can  be  drawn. 

§  325.    The  Proof:   Construction  of  Arguments. 

In  the  construction  of  arguments  two  objects  are  sought : 
first,  that  the  argument  be  sound  ;  second,  that  it  be  con- 
vincing to  the  hearer.  An  argument  is  sound  when  the 
deduction  is  drawn  according  to  logical  rules,  and  is,  there- 
fore, impregnable  against  any  attacks  of  the  adversary.  An 
argument  is  convincing  when  the  hearer  comprehends  it,  and 
perceives  that  the  conclusion  is  inevitable.  Whether  or  not 
an  argument  is  sound  is  best  determined  by  framing  it  in 
syllogistic  form,  and  testing  it  in  the  manner  already  pre- 
scribed for  the  detection  of  false  inferences  while  collecting 
ideas.  No  argument  which  cannot  endure  such  tests  should 
be  employed,  for  though  its  weakness  may  escape  the  atten- 
280 


OF  THE  PROOF  AND   REFUTATION.         §  326 

tion  of  the  hearer,  it  offers  to  the  opposing  advocate  a  vulner- 
able point  through  which  a  serious  injury  may  be  inflicted  on 
the  entire  demonstration.  But  a  sound  argument  is  not 
necessarily  a  convincing  one.  This  latter  attribute  depends 
no  less  upon  the  mental  constitution  and  attitude  of  the  hearer 
than  on  the  nature  of  the  argument ;  and  if  his  crude  and 
defective  modes  of  reasoning  do  not  permit  him  to  appre- 
hend the  certainty  of  the  basic  fact,  and  the  logical  rectitude 
of  the  inference  which  it  affords,  the  argument  itself  is  wasted 
on  him.  Hence,  in  constructing  arguments,  the  method  of 
deduction  adopted  by  the  advocate  must  be  that  which  his 
hearers  are  accustomed  to  pursue,  which  their  own  intellects 
can  follow  readily  as  he  presents  it,  and  the  results  of  which 
they  will  accept  as  true.  No  other  argument  can  be  an 
argument  to  them,  nor  available  for  his  use  upon  them ;  and 
whenever  the  known  fact  cannot  be  connected  by  such 
modes  of  inference  with  the  fact  to  be  inferred,  it  deserves 
no  attention,  however  valuable  it  might  become  in  demon- 
strations directed  to  more  cultivated  minds. 

§  326.    The  Proof:   Selection  of  Arguments. 

Sound  and  convincing  arguments  differ  among  themselves 
in  strength  and  value.  The  strength  of  an  argument  mani- 
fests itself  in  the  vigor  and  rapidity  with  which  it  operates 
upon  the  hearer,  and  the  assurance  with  which  he  rests  in  its 
conclusion.  It  depends  in  part  upon  the  certainty,  clear- 
ness, and  completeness  of  his  knowledge  of  the  known  fact, 
and  in  part  upon  the  evident  correctness  of  the  reasoning 
processes  employed  in  the  deduction.  The  facts  of  which 
every  hearer  is  most  certain,  and  which  he  most  clearly  and 
completely  knows,  are  those  which  constitute  the  common 
stock  of  human  information.  These,  being  universally  un- 
derstood and  appreciated,  require  no  explanation,  become 
fully  present  to  the  hearer's  mind  upon  their  simple  state- 
ment, and  permit  the  orator  to  proceed  at  once  with  his 

281 


§  326  FORENSIC    ORATORY. 

deduction.  Being  also  constantly  adopted  by  the  hearer  as 
the  basis  of  his  own  practical  inferences,  the  method  of 
reasoning  from  them  is  above  all  others  intelligible  and  satis- 
factory. Next  in  order,  in  forensic  oratory,  stand  the  facts 
which  are  admitted  by  both  parties.  Although  the  jury  are 
obliged  by  this  admission  to  receive  them  as  true,  yet  never 
can  they  have  concerning  them  the  same  feeling  of  certainty 
which  those  of  the  preceding  class  produce.  Often  too  these 
facts  are  new  and  strange,  requiring  comment  or  description, 
which  protracts  the  argument,  and  thereby  diminishes  its 
strength.  Inferior  to  these  are  the  facts  established  by  un- 
contradicted testimony,  for  to  their  other  imperfections  is 
added  that  arising  from  the  doubt  whether  the  adverse  party 
could  not  have  disputed  them  had  he  deemed  it  for  his 
interest  to  do  so.  The  lowest  place  is  occupied  by  facts 
which  are  left  uncertain  by  the  witnesses,  and  those  which 
rest  on  previous  deductions.  Inferences,  in  their  turn,  vary 
in  their  conclusiveness,  some  being  necessary,  others  prob- 
able, others  merely  possible.  Of  these  the  necessary  is  the 
strongest,  being  not  only  impregnable  but  usually  self-evi- 
dent, and  carrying  instant  conviction  to  the  hearer.  The 
probable  is  strong  in  proportion  to  its  known  probability. 
The  possible  is  affirmatively  weak,  though  sometimes  nega- 
tively strong.  Uniting  these  two  members  of  an  argument 
in  various  combinations,  and  comparing  them  with  one 
another,  the  relative  strength  of  the  resulting  arguments  can 
be  determined.  A  necessary  inference  from  a  fact  univer- 
sally known  is  the  strongest  of  all  arguments,  and  needs  only 
to  be  clearly  stated  to  immediately  convince  the  hearer.  A 
highly  probable  inference  from  a  universally  known  fact  is 
next  in  value,  outranking  even  a  necessary  inference  from  an 
admitted  fact,  since  ordinary  hearers  place  more  dependence 
on  the  fact  than  on  the  inference,  and  are  more  likely  to  be 
satisfied  by  doubtful  inferences  from  known  facts  than  by 
certain  inferences  from  facts  of  which  they  doubt.  Pro- 
282 


OF  THE   PROOF  AND    REFUTATION.         §  327 

gressively  diminishing  in  vigor,  then  follow  probable  infer- 
ences from  admitted  facts,  necessary  and  probable  inferences 
from  uncontradicted  facts,  necessary  and  probable  inferences 
from  facts  disputed  or  inferred,  and,  lastly,  possible  inferen- 
ces from  known,  admitted,  uncontradicted,  and  disputed  facts. 
In  the  selection  of  his  arguments,  the  advocate,  putting  him- 
self in  the  place  of  the  jury  and  endeavoring  to  estimate  the 
weight  of  arguments  according  to  their  standards  of  judg- 
ment, should  choose  only  the  strong.  The  weak,  and  those 
which  are  available  on  both  sides  of  the  case,  should  be 
rejected ;  and  even  of  the  strong,  the  number  should  be 
small.  A  multitude  of  arguments,  however  forcible,  fatigues 
and  overwhelms  the  hearer,  and  may  create  a  doubt  where 
certainty  before  existed.  That  demonstration  best  succeeds 
which  urges  home  upon  him  a  few  strong  arguments,  the 
strongest  which  the  cause  affords,  and  allows  them  to  do 
their  perfect  work  upon  his  mind. 

§  327.    The  Proof:    Arrangement  of  Arguments. 

The  vigor  and  efficiency  of  a  series  of  arguments  is  very 
much  affected  by  their  arrangement.  Strong  arguments 
should  be  presented  singly,  and  carefully  elaborated  ;  and 
in  their  application  to  the  debated  proposition  should  be 
viewed  in  all  their  aspects,  that  the  entire  advantage  de- 
rivable from  them  may  be  secured.  Weak  arguments,  on 
the  contrary,  should  never  be  exhibited  in  detail,  but  be 
massed  together,  that  in  the  throng  their  individual  deficien- 
cies may  be  concealed.  A  cluster  of  insignificant  proofs 
will  sometimes  do  excellent  service,  when  taken  separately 
they  would  not  be  worthy  of  a  moment's  notice.  The  gen- 
eral order  in  which  arguments  should  be  adduced  is,  first  the 
strong,  then  the  weak,  and  last  the  strongest.  The  weaker 
arguments  never  should  precede  the  strong.  The  impres- 
sion thus  created  is  necessarily  unfavorable,  the  patience 
and  good  will  of  the  hearers  are  at  once  diminished,  and 

283 


§  327  FORENSIC   ORATORY. 

their  confidence  in  the  advocate  and  his  cause  is  perma- 
nently shaken-  Nor  should  the  arguments  advance  from 
strong  to  weak  and  from  weak  to  weaker,  for  thus  the  strong 
are  constantly  diluted  until  the  entire  series  appears  destitute 
of  vigor.  Strong  arguments  at  the  commencement,  separately 
displayed,  followed  by  a  solid  phalanx  of  the  weaker,  and 
these  supported  by  the  strongest  of  all,  give  an  arrangement 
which  permits  the  use  of  every  grade  of  proof,  while  all  the 
time  the  demonstration  gains  in  strength  and  presses  for- 
ward with  accumulated  power. 

§  328.    The  Refutation. 

Refutation  consists  in  the  destruction  of  opposing  argu- 
ments. It  is  a  task  more  difficult  than  that  of  constructing 
favorable  arguments,  and  requires  great  shrewdness,  readi- 
ness of  invention,  and  dialectic  skill.  One  of  its  chief 
embarrassments  arises  from  the  fact  that  it  must  often  be 
performed  without  an  opportunity  for  preparation ;  an  em- 
barrassment from  which  nothing  can  relieve  the  advocate 
except  an  acquired  ability  to  detect  and  expose  logical 
errors,  and  such  a  thorough  knowledge  of  his  cause,  and  of 
the  mental  habits  of  his  adversaries,  as  may  suggest  to  him 
what  arguments  they  will  employ,  and  thus  enable  him  to 
premeditate  a  fit  reply. 

§  329.    The  Refutation :    Irrefutable  Arguments. 

No  direct  refutation  ever  can  avail  unless  the  argument 
attacked  is  refutable.  Some  arguments  are  irrefutable.  A 
necessary  inference  from  a  universally  known  fact  cannot 
be  overthrown.  In  many  cases  this  is  also  true  of  necessary 
inferences  from  admitted  facts,  and  of  highly  probable  infer- 
ences from  known  facts.  The  facts  cannot  be  denied ;  the 
deductions  cannot  be  disputed.  It  is  therefore  useless  to 
attempt  any  direct  refutation.  Such  arguments  must  either 
be  passed  over  without  notice,  and  the  efforts  of  the  advo- 
284 


OF  THE  PROOF  AND  REFUTATION.    §  33 1 

cate  be  devoted  to  enhancing  the  vigor  of  his  own  proof  in 
the  hope  thus  to  overcome  them,  or  their  point  must  be 
turned  with  an  anecdote  or  joke,  or  the  force  of  the  conclu- 
sion be  diminished  by  freely  admitting  its  general  truth,  but 
pointing  out  that  to  the  present  question  it  does  not  apply. 
When  to  employ  these  various  methods  of  meeting  an  unan- 
swerable argument  taxes  sagacity  to  the  utmost,  but  an  entire 
want  of  it  is  shown  whenever  the  advocate  endeavors  to 
impugn  such  an  argument  itself. 

§  330.    The  Refutation:    Refutable  Arguments. 

Of  refutable  arguments  some  may  be  too  weak  to  merit 
refutation.  In  that  event,  the  attention  paid  to  them  by  the 
formal  attempt  to  overthrow  them  gives  them  an  undue 
weight  in  the  minds  of  the  hearers,  and  hence,  if  answered, 
it  should  only  be  with  ridicule  or  flat  denial.  Arguments 
which  possess  an  appreciable  strength,  and  yet  are  not  im- 
pregnable, are  proper  subjects  for  direct  refutation.  This 
refutation  will  consist  in  an  attack  either  upon  the  basic  fact, 
or  upon  the  deduction.  The  basic  fact  may  be  denied,  or 
rendered  doubtful,  or  qualified  in  character  or  degree.  The 
inference  may  be  shown  to  be  defective,  either  as  resting  on 
a  false  assumption,  or  as  not  excluding  other  contradicting 
inferences.  When  the  fact  can  be  denied  or  qualified,  the 
refutation  is  much  more  effective,  because  more  easily  com- 
prehended, than  when  the  accuracy  of  the  deduction 
assailed. 

§  331.    The  Refutation  :    Mode  of. 

In  stating  adverse  arguments  in  order  to  refute  them,  the 
advocate  should  employ  language  calculated  to  tone  them 
down,  and  make  them  appear  weak  while  clearly  expressing 
them.  This,  of  itself,  is  a  sort  of  refutation,  and  predisposes 
the  hearer  to  be  influenced  by  the  attack  which  follows.  In 
this  attack,  the  adverse  arguments  should  be  dispersed  and 

285 


§  331  FORENSIC    ORATORY. 

answered  in  detail ;  for,  as  it  is  the  interest  of  his  opponent 
to  mass  his  weaker  proofs  lest  their  weakness  be  apparent, 
so  is  it  the  duty  of  the  advocate  to  scatter  and  destroy 
them  one  by  one.  By  this  method,  arguments  which  at 
first  blush  seemed  important  and  convincing  are  often  ren- 
dered empty  and  ridiculous.  The  order  pursued  in  refuta- 
tion may  be  that  adopted  by  the  adversary  in  his  proof,  or 
that  which  the  natural  sequence  of  thought  would  indicate. 
Ordinarily  the  strongest  arguments  should  first  be  met  and 
overcome,  and  then  the  weaker  separated  and  demolished ; 
but  when  it  is  expedient  to  remove  some  hostile  bias  from 
the  jury  before  endeavoring  to  refute  the  principal  opposing 
arguments,  the  weaker  may  be  first  impugned  with  the  prom- 
ise that  the  others  shall  in  due  time  be  considered.  Every 
adverse  argument  that  is  noticed  at  all  should  be  met  with 
energy  and  a  show  of  confidence.  The  manner  of  an 
advocate  should  never  indicate  that  he  regards  his  adver- 
sary's arguments  as  formidable,  but  in  the  secret  of  his  own 
thoughts  he  should  never  underestimate  their  strength. 

§  332.    The  Proof  and  Refutation:    their  Order. 

In  the  natural  order  of  discussion  the  proof  precedes  the 
refutation,  and  the  disputant  thus  vindicates  his  own  claims 
before  denying  those  of  his  antagonist.  But  a  departure 
from  this  order  often  becomes  necessary.  When  the  oppos- 
ing arguments  have  been  adduced,  and  have  made  a  strong 
impression  on  the  jury,  the  prospect  of  producing  contrary 
convictions  is  very  slight  unless  the  present  ones  are  first 
removed.  Refutation  then  must  precede  proof,  or  at  least 
must  be  so  mingled  with  it  as  to  prepare  the  way  for  the 
proof  as  it  is  offered.  Although  the  adverse  arguments  have 
not  yet  been  presented,  they  ought  not  on  that  account  to  be 
ignored.  So  far  as  possible,  the  advocate  must  anticipate 
and  answer  them  in  connection  with  his  proof,  or,  when 
he  is  to  have  a  later  opportunity  to  address  the  jury,  he 
286 


OF   THE   PROOF   AND   REFUTATION.         §  334 

should  now  suggest  them  and  promise  to  explode  them  if 
they  are  produced. 

§  333.    The  Proof  and  Refutation  :    their  Style. 

The  style  of  the  proof  and  refutation  should  be  simple. 
Concise  but  not  to  a  degree  impairing  its  intelligibility,  lively 
and  interesting  yet  with  little  ornament,  it  should  aim  rather 
at  communicating  ideas  than  at  awakening  emotions.  Still, 
when  the  subject  renders  it  appropriate,  a  higher  and  more 
decorated  style  may  be  employed,  rhetorical  figures  may  be 
freely  used,  and  the  manner  of  the  advocate  display  the  in- 
tensity of  his  convictions  and  the  urgency  of  his  demands. 
Clearness,  however,  is  the  essential  requisite.  To  secure 
this,  each  separate  demonstration  should  commence  with  a 
restatement  of  the  debated  proposition  in  the  words  of  the 
partition,  and  as  the  different  arguments  are  finished  their 
application  to  the  proposition  should  be  made,  thus  keeping 
the  exact  point  in  question,  and  its  relation  to  the  proof  and 
refutation,  constantly  exposed  to  view. 

§  334.    The  Proof  and  Refutation  on  Issues  at  Law. 

In  demonstrating  a  legal  proposition  the  advocate  is  gov- 
erned by  the  same  general  rules.  Arguments  are  discovered 
and  constructed  by  comparing  the  debated  proposition  with 
recognized  legal  principles,  and  investigating  whether  and  in 
what  manner  it  can  be  deduced  from  them.  The  soundness 
and  convincing  power  of  arguments  are  measured  by  the 
tests  of  fidelity  to  dialectic  form,  and  of  adaptability  to  the 
knowledge,  temperament,  and  predisposition  of  the  judge  to 
whom  they  are  addressed.  Their  strength  is  greatest  when 
the  basic  principle  is  familiar  as  well  as  undisputed,  and  the 
deduction  necessary ;  least,  when  the  principle  is  strange  or 
doubtful,  and  the  inference  merely  possible.  The  restriction  of 
the  number  of  the  arguments  ;  the  selection,  so  far  as  the  case 
will  permit,  of  those  only  which  consist  of  necessary  or  highly 

287 


§  334  FORENSIC   ORATORY. 

probable  inferences  from  statutes,  maxims,  definitions,  prece- 
dents, and  rules  of  practice ;  the  resort  to  decisions  in  other 
jurisdictions,  to  analogous  cases,  to  considerations  of  public 
policy  and  of  the  spirit  of  the  law,  or  to  possible  inferences, 
only  when  the  question  is  so.  infrequent  or  obscure  that  no 
other  guide  to  its  solution  can  be  found ;  the  grouping  of  the 
arguments  in  such  a  series  as  to  display  the  strong,  consoli- 
date the  weak,  and  constantly  increase  in  vigor  as  the  proof 
proceeds ;  and  the  method  and  arrangement  of  the  refuta- 
tion ;  —  all  follow  rules  identical  in  purpose  and  in  operation 
with  those  which  govern  arguments  of  fact. 


288 


OF  THE  PERORATION.  §  336 


CHAPTER  IV. 

OF   THE   PERORATION. 

§  335.    The    Peroration:     its     Purposes,     Character,    and 
Forms. 

The  fourth  and  concluding  part  of  an  oration  is  the  Per- 
oration. Its  purpose  is  to  produce  upon  the  hearer  a  final 
impression,  in  the  highest  degree  favorable  to  the  claims  of 
the  orator.  With  this  aim  it  addresses  both  his  intellect  and 
his  emotions,  presenting  the  leading  ideas  of  the  oration  in 
the  most  vivid  and  energetic  language,  and  appealing  to 
every  impulse  which  these  ideas  are  calculated  to  arouse. 
In  matter,  style,  and  manner  of  delivery,  it  must  therefore 
be  suited  to  the  other  parts  of  the  oration,  and  follow  from 
them  as  their  natural  result  and  culmination.  Like  all  the 
rest  of  the  oration,  it  must  also  be  appropriate  to  the  cause 
and  the  occasion,  making  no  demand  either  upon  the  judg- 
ment or  the  feelings  of  the  hearers  which  these  do  not  evi- 
dently justify.  It  may  assume  one  or  the  other  of  two 
forms:  (1)  A  summing  up  and  concise  reassertion  of  the 
preceding  parts  of  the  discourse  ;  (2)  A  direct  appeal  to 
the  emotions.  These  forms  are  not,  however,  exclusive  o 
each  other,  but,  whichever  be  employed,  the  other  may  be 
blended  with  it  in  such  a  measure  as  the  subject  or  the  cir- 
cumstances may  require. 

§  336.    The  Peroration :   First  Form :   Summation. 

After  a  long  discourse  involving  many  and  varied  demon- 
strations, and  in  complicated  causes  where  any  one  of  the 
subordinate  points  may  become  important  and  decisive  of 
the  issue,  a  final  summing  up  is  necessary,  both  to  refresh 

19  289 


§  336  FORENSIC   ORATORY. 

the  memory  of  the  hearers,  and  to  present  the  subject-matter 
to  their  judgment  in  the  most  compact  and  comprehensive 
form.  Such  a  summation  should  not,  however,  be  a  repe- 
tition of  the  preceding  demonstrations,  in  the  same  terms 
and  order,  but  should  embrace  only  essential  propositions 
with  their  most  conclusive  arguments,  rapidly  outlining  as  to 
each  its  proof  and  refutation,  and  emphasizing  in  the  strong- 
est suitable  language  their  respective  weight  and  value. 
Brevity  and  precision  are  the  chief  characteristics  of  the 
style  of  a  summation ;  but  while  preserving  these,  its  ex- 
pression and  delivery  should  be  forcible  and  animated,  and 
simple  figures  of  thought  or  speech  may  be  employed  to 
illustrate  the  arguments,  or  to  intensify  their  operation. 

§  337.  The  Peroration :  Second  Form :  Appeal  to  the 
Emotions:  when  Attempted. 
Where  the  nature  of  the  cause,  or  of  any  of  its  principal 
incidents,  would  naturally  awaken  sympathy  or  excite  emo- 
tions, a  direct  appeal  to  the  feelings  of  the  hearers  is  appro- 
priate and  effective.  Of  the  existence  of  the  grounds  for 
such  appeal,  and  of  its  probable  success,  the  advocate  can 
best  judge  by  the  effect  which  they  produce  upon  himself. 
If  his  contemplation  of  the  cause,  in  its  entirety  or  its  detail, 
arouses  his  own  feelings,  his  hearers  are  likely  to  experience 
the  same  emotions  when  the  same  ideas  are  as  vividly  pre- 
sented to  their  minds ;  and  contrariwise,  if  no  such  effect 
follows  in  himself,  no  words  that  he  can  utter  will  stir  in 
their  hearts  the  impulses  which  lie  dormant  in  his  own.  If, 
therefore,  there  is  nothing  in  the  cause  which  naturally 
inflames  the  advocate,  there  is  also  nothing  with  which  he 
can  reasonably  expect  to  inflame  the  hearer.  But  even 
when  the  cause  contains  elements  which  would  excite  emo- 
tions if  properly  represented  to  the  hearers,  the  advocate 
may  not  be  able,  either  from  dulness  of  imagination,  or 
his  limited  command  of  language,  or  his  habitual  coldness 
290 


OF  THE   PERORATION.  §  338 

or  constraint  of  manner,  to  so  portray  them  to  his  hearers  as 
to  awake  in  them  the  feelings  which  have  been  produced  in 
him.  Under  these  conditions,  no  direct  appeal  should  ever 
be  attempted.  Its  failure  is  almost  certain,  and  invariably 
excites  suspicion  and  disgust.  An  advocate  of  such  limita- 
tions may  safely  try  to  touch  the  heart  by  casual  suggestions 
woven  into  the  severer  portions  of  his  speech,  but  risks  his 
reputation  and  his  cause  alike  by  flights  of  eloquence  which 
he  cannot  sustain. 

§  338.  The  Peroration:  Second  Form:  Appeal  to  the 
Emotions :  Method. 
In  appealing  to  the  emotions,  any  idea  connected  with 
the  cause  or  having  an  apparent  relation  to  it  may  be  made 
available,  and  the  appeal  may  be  directed  to  every  favorable 
emotion  which  the  ideas  are  able  to  arouse.  But  while  the 
number  and  variety  of  feelings  summoned  into  active  opera- 
tion may  be  great,  no  single  feeling  can  respond  to  a  pro- 
tracted stimulation.  Emotion  is  of  its  own  nature  transient. 
It  kindles,  blazes,  consumes  itself,  and  dies  ;  and  in  its  ashes 
lie  concealed  no  smouldering  embers  which  can  again,  by 
the  same  breath  of  thought  or  language,  be  awakened  into 
flame.  The  orator  should  never  prolong  his  appeal  until 
the  feeling  it  excites  commences  to  decline,  much  less  after 
it  has  entirely  passed  away  ;  for  the  ideas  which  first  attracted 
now  repel,  and  the  impulse  which,  but  a  moment  since, 
seemed  irresistible,  has  given  place  to  an  exhaustion  and 
inertia  from  which  the  same  ideas,  if  further  urged,  are  far 
more  likely  to  develop  a  new  and  antagonistic  impulse  than 
to  revive  the  old.  To  stimulate  the  feeling  to  its  height 
and  then  instantly  to  change  the' subject,  either  addressing 
different  emotions  or  descending  to  the  lower  levels  of  dis- 
cussion or  narration,  and  leave  the  feeling  to  dissipate 
unnoticed  by  the  hearer,  is  to  secure  all  the  advantages  of 
its  effect  upon  the  will,  and  hazard  no  reaction  with  its  possi- 

291 


§  338  FORENSIC   ORATORY. 

bilities  of  loss.  The  style  of  the  appeal  should  fitly  clothe 
the  thoughts  and  feelings  which  the  orator  expresses  and 
inspires;  moderate,  when  the  emotions  are  temperately 
stirred ;  sublime,  where  the  whole  nature  of  the  speaker  and 
his  hearers  is  aroused.  All  ornaments  of  rhetoric,  all  arts  of 
elocution,  are  appropriate,  provided  only  that  the  tide  of  feel- 
ing rises  to  their  mark,  and  that  the  words  and  actions  seem 
to  follow,  and  not  lead,  the  progress  of  the  intellect  and  heart. 

§  339.  The  Peroration:  Second  Form:  Appeal  to  the 
Emotions :  Variations  in  Form. 
The  effect  of  an  oration  is  sometimes  increased  by  dis- 
tributing the  direct  appeal  to  the  emotions  through  the 
demonstration,  and  arousing  the  impulses  suited  to  each 
proposition  in  connection  with  its  proof  and  refutation.  This 
is  particularly  expedient  when  the  cause  is  one  of  absorbing 
interest,  and  pregnant  with  emotional  energy  whose  entire 
display  in  the  peroration  would  overload  that  part  of  the 
discourse,  and  strain  beyond  endurance  the  feelings  and 
attention  of  the  hearers.  These  intermediate  appeals  should 
always  be  extremely  brief,  be  embraced  in  a  few  sentences, 
and  never  offered  until  the  propositions  on  which  they  are 
based  are  fully  proved.  Aside  from  these  and  the  perora- 
tion, no  direct  appeal  to  the  emotions  can  properly  be  made. 
But  the  entire  oration,  with  all  its  methods  and  surroundings, 
is  an  indirect  appeal,  and  incidentally  the  orator  may  touch 
the  heart  whenever  the  hearers  are  prepared  to  feel  the  im- 
pulse, and  the  means  of  waking  it  are  at  his  command. 

§  340.    The  Peroration:   its  Conclusion. 

The  peroration,  being  the  conclusion  of  the  whole  dis- 
course, should  always  end  with  dignity  and  strength.  An 
abrupt  termination  which  takes  the  hearer  by  surprise,  a 
gradual  debilitation  of  ideas  and  words  which  indicates  that 
the  resources  of  the  speaker  are  exhausted,  a  promise  to 
292 


OF  THE   PERORATION.  §  340 

conclude,  without  concluding,  which  tries  the  patience  of 
the  hearers  more  severely  than  the  most  protracted  speech, 
are  serious  faults,  —  faults  serious  enough  to  mar,  if  not  de- 
stroy, the  good  impressions  made  by  an  oration  otherwise 
persuasive  and  convincing.  As  the  conclusion  is  approached, 
the  thoughts  and  language,  the  tone  and  manner,  of  the 
orator  should  apprise  his  hearers  that  the  end  has  come ; 
then  with  a  strong,  harmonious  period,  embodying  the 
essence  of  the  entire  oration,  forcible  in  its  utterance,  grave 
in  its  delivery,  he  should  close. 


293 


§  341  FORENSIC    ORATORY. 


CHAPTER  V. 

OF   THE  PREPARATION   OF  AN   ORATION. 

§  341.    Preparation  of  an  Oration:    its  Order. 

In  preparing  an  oration,  the  first  part  which  demands 
attention  is  the  partition.  Having  thoroughly  investigated 
his  subject-matter,  and  collected  all  the  ideas  embraced  in 
or  related  to  it,  the  orator  enumerates  the  various  proposi- 
tions which  are  to  be  discussed,  framing  each  with  great 
care  and  precision,  and  arranging  them  in  their  natural  order 
as  they  are  to  be  presented  to  his  hearers.  In  forensic 
oratory  these  propositions  are  the  issues  in  the  cause,  whose 
character  is  indicated  by  the  pleadings,  but  whose  accurate 
and  comprehensive  definition  often  requires  a  high  degree  of 
legal  knowledge  and  of  verbal  skill.  Upon  each  ot  these 
propositions,  the  arguments  which  constitute  its  proof  and 
refutation  will  then  be  prepared,  every  argument  being  se- 
lected with  regard  both  to  its  soundness  and  convincing 
power,  the  adverse  arguments  anticipated  and  their  answers 
planned,  and  all  distributed  in  such  a  series  as  to  exhibit  in 
the  clearest  light  the  strength  of  one  side  and  the  weakness 
of  the  other.  On  this  part  of  the  oration  any  amount  of 
labor  may  be  profitably  expended,  the  arguments  and  refu- 
tations being  cast  in  different  forms,  their  language  corrected 
and  intensified,  their  sequence  varied,  and  every  effort  made 
to  secure  that  mode  of  demonstration  which  shall  be  at  once 
the  shortest  and  the  most  conclusive.  Next  follows  the  con- 
struction of  the  statement,  rehearsing  all  the  facts  which 
enter  into  the  essence  of  the  controversy,  or  form  the  bases 
of  the  arguments,  in  chronological  order,  and  with  adequate 
details.  The  substantial  parts  of  the  discourse  having  been 
294 


OF  THE   PREPARATION   OF  AN   ORATION.      §   343 

thus  prepared,  the  nature  of  the  peroration  is  to  be  deter- 
mined in  view  of  the  preceding  proof  and  refutation,  and 
of  the  general  tone  of  the  oration,  and  the  summation  or  ap- 
peal composed.  Last  he  chooses  the  exordium,  which,  being 
designed  to  introduce  the  other  parts,  must  contain  matter 
connected  with  but  not  anticipating  them,  and  hence  must  be 
selected  after  these  are  finished.  These  four  divisions  are  now 
placed  in  proper  order,  each  is  united  to  its  successor  by  an 
appropriate  transition  sentence,  and  the  oration  is  completed. 

§  342.    The  Preparation  of  an  Oration  :   Writing. 

The  perfect  preparation  of  a  discourse  requires  not  only 
that  its  ideas  should  be  selected  and  arranged,  but  that  its 
words  should  be  written  out  and  memorized ;  and  though 
this  is  sometimes  impossible,  the  facility  with  which  an  orator 
constructs  extemporaneous  speeches,  during  their  delivery, 
depends  too  much  upon  his  habit  of  writing  and  learning  his 
orations  to  permit  him  to  neglect  it  when  he  has  the  oppor- 
tunity. An  orator  should  write  slowly  and  accurately,  care- 
fully choosing  his  language  and  rhetorical  figures,  framing 
his  sentences  with  unity  and  strength,  and  testing  their 
rhythm  by  repeating  them  aloud  until  their  flow  of  sound  is 
smooth  and  pleasing.  That  which  is  thus  written  must  be 
again  and  again  revised,  words  changed  for  their  synonyms  or 
for  more  natural  expressions,  and  their  arrangement  altered 
whenever  greater  intelligibility  or  force  can  be  thereby  se- 
cured. For  the  purpose  of  making  such  corrections,  it  is 
advisable  to  leave  wide  margins  and  interlinear  spaces,  and 
an  occasional  blank  page  for  substitutions  or  additions. 

§  343.    The  Preparation  of  an  Oration:    Memorizing. 

The  ability  to  commit  to  memory  their  own  orations  some 
orators  possess  in  a  remarkable  degree  ;  a  single  reading  of 
what  they  have  already  written  enabling  them  to  repeat  it 
with  perfect  verbal  accuracy,  even  after  considerable  periods 

295 


§  343  FORENSIC   ORATORY. 

of  time.  But  such  memories  are  rare,  and  the  ordinary 
speaker  is  usually  compelled  to  avail  himself  of  all  the  aids 
to  memory  which  he  can  devise.  Pre-eminent  among  these 
are  the  judicious  division  and  natural  arrangement  of  the 
subject  itself,  for  these  once  made  will  seldom  be  departed 
from,  and  will  themselves  suggest  the  language  which  has 
been  employed  for  their  expression.  The  separation  of  each 
division  from  the  others  in  the  act  of  learning  them,  that 
one  may  not  depend  on  the  closing  words  of  the  preceding, 
the  selection  of  striking  catch-words  for  the  commencement 
of  the  divisions,  and  the  study  of  the  parts  aloud  and  not 
merely  with  the  eye  or  the  interior  voice,  are  also  useful. 
But  however  successful  he  may  be  in  such  efforts,  an  orator 
ought  not  to  trust  his  memory  alone,  for  on  any  occasion  it 
is  possible  that  some  transient  bodily  disturbance,  or  an 
unusual  occurrence  in  the  audience,  may  interrupt  the  cur- 
rent of  his  thoughts  and  temporarily  suspend  the  recollec- 
tion of  his  words.  To  provide  against  such  emergencies, 
he  should  have  before  him  a  skeleton  of  his  oration,  with 
the  initial  words  of  each  division,  that  in  the  event  of  his 
forgetfulness  in  one  he  may  immediately  go  forward  with 
another. 

§  344.  The  Preparation  of  an  Oration :  Extemporaneous 
Orations :  Mode  of  Acquiring  Facility  in :  Adopt- 
ing a  Fixed  Flan  of  Speech. 

Extemporaneous  orations  are  of  two  classes :  (i)  Those 
in  which  the  ideas  and  words  are  both  extemporaneous ; 
(2)  Those  in  which  the  ideas  are  premeditated  and  the  words 
only  are  extemporaneous.  Any  orator  may  be  compelled  to 
resort  at  some  time  to  these  methods  of  discourse,  and  a 
facility  in  speaking  without  premeditated  thoughts  and  words 
is,  therefore,  most  desirable.  The  first  step  to  be  taken  for 
acquiring  this  facility  is  to  adopt  some  fixed  plan  of  discourse, 
and  train  the  mind  to  follow  it.  This  plan  must,  of  course, 
296 


OF  THE   PREPARATION   OF   AN   ORATION.    §  345 

contain  the  four  parts  of  an  oration,  in  their  proper  order. 
Both  the  exordium  and  the  peroration  should  consist  of 
matter  of  a  general  character  applicable  to  a  variety  of  cases 
and  occasions,  and  should  be  written  out  and  memorized ; 
leaving  only  the  statement,  and  the  proof  and  refutation,  to 
be  provided  from  the  subject  concerning  which  the  oration 
may  happen  to  be  made  ;  and  even  the  form  of  these,  with 
their  connecting  sentences,  may  also  be  composed.  Thus 
furnished  with  a  beginning  and  an  ending,  and  with  an  inter- 
mediate framework  on  which  to  display  the  ideas  peculiar  to 
the  question  that  may  be  discussed,  the  orator  who  under- 
stands his  subject  is  never  unprepared  to  speak.  Having 
formed  his  plan,  the  orator  should  then  accustom  himself  to 
its  use  by  speaking  upon  different  subjects  suddenly,  and 
without  any  forethought,  until  his  mind  runs  in  that  channel 
without  conscious  effort.  The  ease  and  fluency  which  can 
be  acquired  by  such  long  continued  discipline  almost  stag- 
gers belief;  and  by  its  means  persons  comparatively  illiterate 
often  become  able  to  discourse  agreeably  and  forcibly  upon 
a  subject  suggested  by  the  audience,  to  the  astonishment 
of  all  who  hear  them.  The  mechanical  character  of  such 
an  oration  constitutes  no  objection  to  it,  for  it  will  never 
be  suspected  unless  too  frequently  repeated.  Nor  is  it  in 
any  way  unworthy  of  the  orator.  Among  the  compositions 
of  Demosthenes  are  said  to  have  been  found  more  than 
fifty  of  these  exordia,  evidently  prepared  for  this  purpose, 
and  Cicero  describes  his  own  volume  of  proems  from  which 
he  could  select  at  once  whatever  might  be  suited  to  his 
needs. 

§  345.    The  Preparation  of  an  Oration :  Extemporaneous 

Orations  :  Mode  of  Acquiring  Facility  in  :  Habits 

of  Observing  and  Remembering  Details. 

The  habit  of  presenting  to  his  mind  the  images  of  things, 

or  recalling  what  he  has  seen  and  heard  to  his  imagination, 

297 


§  345  FORENSIC   ORATORY. 

is  of  immense  advantage  to  an  orator,  especially  in  his  ex- 
temporaneous discourse.  Men  whose  thoughts  are  for  the 
most  part  occupied  with  abstract  conceptions,  and  to  whom 
an  object  is  a  mere  group  of  attributes  with  no  particular 
features  to  distinguish  it  from  other  objects  of  its  kind, 
may  be  accurate  reasoners  and  critical  philologists,  but  are 
rarely  effective  orators,  and  seldom  succeed  in  unpremedi- 
tated speech.  On  the  other  hand,  men  whose  eyes  are  open 
to  all  the  diversities  of  form,  color,  and  action  in  external 
things,  and  whose  memories  retain  these  details  with  exact- 
ness, possess  powers  of  description  and  narration  which  in- 
terest and  please  either  in  conversation  or  in  oratory.  The 
charm  of  a  discourse  mainly  consists  in  the  vividness  with 
which  the  audience  are  made  to  see  what  the  orator  is  en- 
deavoring to  portray,  and  this  depends  upon  the  clearness 
with  which  he  beholds  it  in  his  own  mind,  and  the  particu- 
larity with  which  he  can  depict  it  by  his  words.  Hence  it  is 
that  some  men  can  tell  a  story,  or  describe  a  scene  or  an 
event,  with  wonderful  effect,  while  others  in  the  same  at- 
tempt will  fail  entirely.  One  perceives  it  perfectly  and  in 
all  its  circumstances  as  he  narrates  it ;  the  other  views  it  only 
in  its  dim  and  fragmentary  outlines,  and  can  impart  no  fuller 
vision  than  he  himself  enjoys.  Undoubtedly  this  ability  is 
natural,  for  "  some  men  are  born  with  eyes  and  some  with- 
out them."  But  in  every  person  it  can  be  cultivated  to  a 
considerable  degree.  By  properly  forming  in  the  mind  the 
images  of  things  heard  or  seen,  by  studying  the  details  of 
objects  observed  or  events  witnessed,  and  by  endeavoring  in 
ordinary  conversation  to  recall  and  picture  these  accidental 
but  most  interesting  features,  the  habit  both  of  seeing  and 
retaining  them  may  be  developed,  and  lend  to  a  discourse 
which  otherwise  would  be  mere  empty  sound  a  wonderful 
attractiveness  and  power. 


298 


OF  THE   PREPARATION   OF   AN   ORATION.      §  347 

§  346.  The  Preparation  of  an  Oration :  Extemporaneous 
Orations :  Mode  of  Acquiring  Facility  in :  Habit 
of  Speaking  Slowly. 
The  habit  of  speaking  slowly  is  also  conducive  to  the 
success  of  an  extemporaneous  oration.  For  various  rea- 
sons this  habit  is  essential  to  an  orator,  but  as  a  method  of 
acquiring  and  preserving  such  self-command  as  enables  him 
to  select  his  thoughts  and  words  as  he  progresses  it  is  of 
very  great  utility.  A  rapid  speaker  often  runs  ahead  of 
his  ideas,  and  utters  that  which  commits  him  to  further  state- 
ments beyond  or  inconsistent  with  his  subject,  and  thus 
diverts  himself  from  the  real  point  of  his  oration.  But 
one  who  speaks  with  moderation  has  an  opportunity  to  judge 
each  word  before  it  issues  from  his  lips,  and  thus  at  once 
protects  himself  from  error  and  presents  a  strong,  harmo- 
nious discourse. 

§  347.  The  Preparation  of  an  Oration  :  Extemporaneous 
Orations  :  Mode  of  Acquiring  Facility  in  :  Habit 
of  Collating  Ideas  as  Produced  in  Evidence. 

Another  habit  is  of  great  assistance  to  the  advocate  in  his 
extemporaneous  orations,  —  that  of  arranging  his  facts  under 
their  proper  heads  as  they  are  testified  to  by  the  witnesses. 
This  occupies  little  time  and  involves  no  considerable  labor, 
but  places  the  ideas  for  his  oration  in  complete  readiness  for 
use  as  soon  as  the  evidence  is  closed.  To  prepare  a  paper 
with  the  points  in  controversy  arranged  upon  it  in  their  order 
of  discussion,  and  under  each  to  insert  the  principal  matters 
bearing  on  the  case,  with  a  brief  memorandum  of  the  argu- 
ments which  they  suggest,  provides  him,  if  his  exordium  and 
peroration  have  been  previously  composed,  with  a  complete 
skeleton  of  his  oration,  and  with  nothing  new  to  furnish  at 
the  moment  of  delivery  except  the  language  in  which  his 
demonstration  is  expressed. 


299 


§  348  FORENSIC   ORATORY. 

§348.  The  Preparation  of  an  Oration:  Extemporaneous 
Orations  :  Mode  of  Acquiring  Facility  in  :  Pre- 
meditation of  the  Ideas. 
When  the  ideas  of  an  oration  are  premeditated  and  the 
words  alone  are  to  be  extemporized,  the  difficulties  of  the 
orator  are  comparatively  few.  If  he  is  a  man  of  good  read- 
ing, and  has  cultivated  habits  of  accurate  and  graceful 
speaking  in  his  ordinary  conversation,  he  will  encounter  no 
obstacles  except  those  which  arise  out  of  his  own  self-con- 
sciousness. This  is  a  form  of  pride  or  vanity,  and  consists 
in  the  fear  that  he  will  fail,  or  that  his  efforts  will  not  be  ap- 
preciated. The  power  to  utter  thought  is  natural  to  all  men. 
Children,  not  yet  educated  into  self-consciousness,  never 
find  any  hindrances  in  their  endeavors  to  express  themselves. 
Their  language  is  nearly  always  forcible  and  graceful,  as  also 
is  the  action  by  which  they  illustrate  their  speech.  This 
fault  of  education  it  is  not  easy  to  correct.  But  an  orator 
who  lives  in  familiar  intercourse  with  his  fellow  men,  par- 
ticipating in  their  enterprises  and  amusements,  taking  and 
giving  the  customary  sarcasms  and  rebuffs  of  life,  is  far  less 
likely  to  suffer  from  it  than  the  silent,  quiet  student,  who 
dwells  in  and  by  himself,  and  to  whom  men  in  general  are 
aliens,  if  they  are  not  foes.  The  only  mode  of  conquering  it, 
on  the  instant,  is  to  become  so  absorbed  in  the  delivery  of 
the  oration  as  to  forget  self  for  the  time,  in  the  desire  to 
bend  the  hearers  to  his  wilL 

§  349.    The  Preparation  of  an  Oration:  Extemporaneous 
Orations :  Mode  of  Acquiring  Facility  in :  Ideas 
Premeditated :  Skeleton. 
In  speaking  from  premeditated  ideas  a  written  skeleton, 
containing  the  outlines  of  the  speech,  should  always  be  pre- 
pared.    Apart  from  the  risk  of  neglecting  some  important 
thought  while  in  the  heat  of  the  delivery,  there  is  great  danger 
that  the  temptations  to  digression,  which  constantly  befall  the 
300 


OF   THE   PREPARATION   OF   AN   ORATION.      §  349 

advocate,  will  lead  him  so  far  away  from  the  main  thread  of 
his  discourse  that  he  can  never  properly  return.  This  dan- 
ger is  avoided  by  previously  spreading  the  heads  of  the 
oration  upon  paper,  and  following  its  guidance  during  the 
act  of  speaking.  This  skeleton  should  be  sufficiently  com- 
plete to  recall  to  his  memory,  at  an  instant's  glance,  every 
idea  he  wishes  to  express,  and  every  figure  of  speech  he  in- 
tends to  employ.  It  should  be  written  in  so  clear  and  bold 
a  hand  that  it  will  not  perplex  the  eye,  and  with  such  spaces 
between  its  different  members  as  will  enable  him  to  insert 
any  new  idea  which  the  evidence  or  his  adversary  may 
suggest. 


301 


§  35°  FORENSIC   ORATORY. 


BOOK   IV. 

OF    DELIVERY. 

§  350.    Delivery :   its   Importance,   Purposes,   and   Divis- 
ions. 

The  last  and  crowning  act  of  oratory  is  delivery.  It  is  to 
this  act  that  the  power  of  eloquence  is  commonly  attributed, 
not  merely  by  unlettered  audiences,  but  by  the  wisest  and 
most  skilful  orators ;  for  true  and  noble  thoughts  though 
clothed  in  excellent  expressions,  if  ill  delivered,  exercise  little 
influence  upon  a  hearer  compared  with  ordinary  ideas  and 
language  uttered  with  all  the  energy  and  grace  of  cultivated 
speech  and  action.  "  It  is  of  less  moment,"  says  Quintilian, 
"  what  our  thoughts  are,  than  in  what  manner  we  express 
them,  since  those  whom  we  address  are  moved  only  as  they 
hear.  .  .  .  For  my  own  part  I  can  say,  that  language  of  but 
moderate  merit,  if  recommended  by  a  forcible  delivery,  will 
make  more  impression  than  the  very  best,  if  unattended  with 
that  advantage."  Like  other  acts  of  oratory,  delivery  has 
two  purposes  :  to  convince  and  to  persuade.  It  involves 
two  concurrent  processes  :  the  use  of  voice  and  gesture. 


302 


of  voice.  §  351 


CHAPTER  I. 

OF   VOICE. 

§  351.  Delivery:  the  Voice  :  its  Qualities  and  Cultivation. 
A  voice  suitable  for  oratorical  use  possesses  a  clear,  sweet 
tone,  a  volume  sufficient  to  fill  the  auditorium  in  which  the 
oration  is  to  be  pronounced,  and  perfect  flexibility.  A  good 
voice  is  no  less  necessary  to  the  orator  than  to  the  songstress 
or  the  actor,  and  in  his  case,  as  well  as  theirs,  is  largely  the 
result  of  cultivation.  Every  human  voice  contains  agreeable 
tones  which  are  numerous  enough  to  serve  the  purposes  of 
oratory.  All  of  these  that  are  within  the  natural  range  of 
his  own  voice  the  orator  can  readily  discover,  and  should 
then  employ  them  exclusively  in  singing  and  in  reading  aloud 
until  they  become  habitual,  avoiding  at  the  same  time  those 
faults  of  utterance  which,  in  so  many  singers,  render  even 
their  sweet  notes  unintelligible.  The  volume  of  the  voice 
depends  partly  on  the  condition  of  the  lungs  and  throat,  and 
partly  on  the  management  of  the  vocal  organs.  To  the 
comfort  of  an  orator  strong  and  healthy  lungs  are  essential, 
and  much  can  be  do"ne  by  proper  exercise  for  their  invigora- 
tion.  The  throat  and  vocal  cords  can  be  preserved  from 
injury  by  guarding  against  cold  and  dietetic  errors,  and  are 
improved  in  vigor  and  endurance  by  reasonable  and  constant 
use.  In  speaking,  the  formation  of  the  articulated  sounds 
may  take  place  anywhere  between  the  summit  of  the  larynx 
and  the  lips.  The  nearer  to  the  lips  this  sound  is  formed, 
the  farther  into  space  will  it  penetrate  with  the  same  exertion 
of  the  lungs  and  throat,  and  thus  the  volume  of  the  voice  may 
be  increased  without  additional  force  of  respiration.  Prac- 
tice  in  this  formation  of  the  sounds  is  one  of  the   most 

303 


§  351  FORENSIC   ORATORY. 

valuable  remedies  for  all  defects  of  voice  and  articulation, 
and  qualifies  an  orator  to  address  large  audiences,  for  a  long 
time,  without  undue  fatigue.  Flexibility  is  best  cultivated  by 
singing  and  declaiming  compositions  in  which  the  voice  is 
kept  in  constant  change  from  slow  to  rapid  movement  and 
from  the  highest  to  the  lowest  tones. 

§  352.    Delivery :  the  Voice :  its  Management. 

Of  every  human  voice  there  are  three  keys,  or  degrees  of 
audibility :  the  high,  the  middle,  and  the  low.  The  differ- 
ences in  these  degrees  depend  not  only  on  the  tone  and 
volume  of  the  voice,  but  on  the  size  and  structure  of  the 
auditorium.  In  ordinary  discourse  the  middle  key  is  used, 
the  high  and  low  in  parts  more  forcible  or  solemn.  On  any 
given  occasion,  therefore,  the  middle  key,  which  fills  the 
room  and  is  distinctly  heard  by  every  listener,  determines  the 
gradations  of  the  voice  for  the  entire  oration,  and  must  be 
found  at  its  commencement  if  the  orator  would  speak  with 
comfort  and  be  certain  that  his  audience  can  hear.  This  is 
accomplished  by  addressing  the  remotest  auditors  in  a  nat- 
ural key,  and  gradually  elevating  its  tone,  and  increasing 
its  volume,  until  he  finds  that  his  own  enunciation  becomes 
easy,  while  yet  the  whole  space  around  him  is  full  of  the 
vibrations  of  his  voice.  Experience  alone  can  give  an  orator 
the  complete  command  of  this  faculty,  but  it  can  be  acquired 
to  an  extent  which  will  enable  him  to  speak  without  difficulty 
anywhere  indoors,  when  distance  is  the  only  obstacle  to  be 
encountered.  If  the  auditorium  is  acoustically  defective,  as 
where  it  is  inhabited  by  an  echo  or  reverberation,  no  effort  of 
the  orator  can  overcome  it.  The  necessary  middle  key  hav- 
ing been  thus  discovered,  the  orator  must  restrain  his  voice 
within  its  limits,  except  when  the  idea  which  he  expresses 
requires  a  higher  or  a  lower  key,  never  even  then  dropping 
his  voice  so  far  as  to  become  inaudible,  nor  raising  it  until  it 
shocks  and  offends  the  ear. 

304 


OF  VOICE.  §  354 

§  353.  Delivery :  the  Voice :  Articulation :  its  Qualities 
and  Defects. 
An  orator  must  articulate  each  sound  of  every  word  dis- 
tinctly and  deliberately,  uttering  the  syllables  with  prompt- 
ness and  the  entire  word  without  interruption,  and  pausing 
at  the  proper  intervals  to  regain  his  breath.  One  of  the  most 
common  faults,  which  mars  the  speech  of  otherwise  good 
orators,  is  the  emission  of  an  inarticulate  sound  before  com- 
mencing the  pronunciation  of  a  word.  This  is  occasioned 
by  a  premature  nervous  impulse,  unconsciously  imparted  to 
the  vocal  organs  before  the  idea  and  the  word  by  which  it  is 
to  be  expressed  are  fully  apparent  to  the  mind  and  ready  for 
delivery.  It  is  a  fault  at  once  ludicrous  and  serious,  is  rarely 
noticed  by  its  victim,  and  therefore  is  not  often  curable  ex- 
cept by  the  immediate  admonitions  of  some  persistent  friend. 
Other  faults  consist  in  speaking  through  the  nose ;  forming 
the  voice  in  the  throat,  instead  of  with  the  lips ;  mumbling 
the  sounds  in  the  mouth ;  drawling,  weakening,  or  omitting 
some  of  the  sounds  in  a  word,  especially  that  of  the  final 
syllable  ;  pausing  in  the  middle  of  a  word  ;  letting  the  voice 
fall  at  the  conclusion  of  a  sentence  ;  and  excessive  slowness 
or  rapidity.  Each  of  these  faults  indicates  either  a  defective 
training  or  a  careless  habit  in  the  speaker,  and  is  removable 
by  discipline. 

§  354.  Delivery:  the  Voice:  Pronunciation:  Accent:  Em- 
phasis :  Pauses  :  Inflections. 
An  orator  should  pronounce  his  words  with  propriety 
and  elegance,  according  to  the  prevailing  standards,  and 
with  the  boldness  and  energy  of  one  who  speaks  from  his 
own  convictions,  and  is  intent  on  their  acceptance  by  his 
hearers.  He  must  give  the  correct  accent  to  all  polysyl- 
labic words,  and  emphasize  the  important  words  of  every 
sentence  in  such  a  manner  as  to  bring  out  its  precise  mean- 
ing, and  exhibit  the  relations  of  its  members  to  each  other. 

20  305 


§  354  FORENSIC   ORATORY. 

He  must  observe  those  pauses,  which  precede  or  follow  pas- 
sages of  unusual  significance  in  order  to  direct  attention  to 
them,  or  to  allow  the  mind  to  rest  upon  them  for  an  instant, 
and  thus  strengthen  their  impression.  The  inflections  of  his 
voice  must  vary  with  the  changing  current  of  his  thoughts, 
obeying,  here  as  elsewhere,  the  dictates  of  nature,  which 
spontaneously  finds  for  every  idea  and  emotion  its  appro- 
priate utterance,  until  self-consciousness  or  artificial  man- 
nerism destroys  the  unpremeditated  correspondence  between 
the  interior  thought  and  the  mode  of  its  exterior  expression. 
He  must  speak  rapidly  or  slowly,  with  vivacity  or  seriousness, 
in  loud  or  soft  tones,  as  the  sentiment  requires,  alike  avoid- 
ing haste,  undue  excitement,  excessive  eagerness,  inaudible 
soliloquy,  and  boisterous  vociferation. 

§355.  Delivery:  the  Voice:  Adaptation  to  Different  Parts 
of  the  Oration. 
Each  part  of  an  oration  has  its  appropriate  mode  of  utter- 
ance. In  the  exordium  the  tones  of  the  voice  should  be 
gentle,  sweet,  and  winning,  its  volume  moderate  and  its  pro- 
nunciation slow,  unless  the  feelings  of  the  audience,  aroused 
by  some  preceding  incident,  demand  a  vigorous  outburst 
from  the  orator.  In  the  statement,  the  voice,  though  calm 
and  even,  attains  a  higher  key,  and  indulges  in  a  stronger 
emphasis  and  a  more  varied  inflection.  In  the  proof  and 
refutation,  as  also  in  a  peroration  which  sums  up  the  argu- 
ments, the  general  tone  is  slow  and  forcible  ;  in  hot  dispute 
becoming  quick  and  pungent ;  in  description,  sprightly  or 
solemn  as  the  incident  demands :  in  digression,  cheerful  and 
flowing ;  in  ridicule  and  sarcasm,  light  and  tremulous.  In 
the  appeal  to  the  emotions,  whether  occurring  at  the  end  of 
the  oration,  or  terminating  the  several  demonstrations,  or  dis- 
tributed throughout  the  body  of  the  speech,  the  voice  adapts 
itself  to  the  particular  emotion  which  the  orator  appears 
to  feel  and  thus  endeavors  to  arouse ;  if  pity,  tender  and 
306 


OF  VOICE.  §  356 

mournful ;  if  indignation,  rapid,  sharp,  and  strong ;  if  pleas- 
ure, full  and  clear ;  if  sober  condemnation,  serious  and  slow. 
The  vehemence  of  passion  manifests  itself  in  a  high  and 
rising  voice ;  and  the  repose  of  feeling  in  lower  tones  and 
falling  cadences. 

§  356.  Delivery:  the  Voice  :  Acquisition  of  Facility  in  its 
Management  and  Use. 
Under  ancient  systems  of  education  the  training  of  chil- 
dren in  the  proper  use  of  their  own  language,  both  for  writ- 
ing and  speaking,  was  protracted  and  severe,  almost  to  the 
exclusion  of  other  branches  of  learning  now  considered  of 
paramount  necessity.  Those  systems  were  of  signal  advan- 
tage to  the  orators  of  the  periods  in  which  they  prevailed ; 
for  never  in  maturer  years  can  the  human  voice  be  cultivated 
with  such  ease  and  certainty  of  permanent  results,  or  the 
memory  be  so  fruitfully  impregnated  with  rules  and  habits 
of  correct  pronunciation,  accent,  emphasis,  and  inflection,  as 
in  the  vigilant  and  receptive  age  of  childhood.  Hence  the 
importance  of  that  ceaseless  drill  in  spelling,  reading,  and 
declamation,  so  often  in  our  modern  schools  neglected  in 
order  to  make  way  for  studies  whose  thin  veneer  soon 
cracks  and  falls  off  from  the  pupil's  mind,  leaving  its  rough, 
unpolished  texture  manifest  through  life  in  its  illogical  pro- 
cesses of  thought,  in  the  superficiality  of  all  its  knowledge, 
and  in  the  grotesque  deformities  of  its  expressions.  To  the 
old  systems  and  their  methods  the  training  of  our  children 
perhaps  never  will  return,  but  for  the  orator,  whose  early 
years  were  not  spent  in  the  mastery  of  his  mother  tongue, 
no  other  course  is  open  but  to  begin  with  spelling-book  and 
reader,  and  to  pursue,  with  such  instruction  as  he  can  pro- 
cure, the  arduous  task  of  vocal  culture,  until  his  utterance  is 
as  forcible  and  pleasing  as  under  proper  discipline  it  should 
have  been  before  he  passed  from  boyhood  into  man. 


307 


§357  FORENSIC   ORATORY. 


CHAPTER  II. 

OF   GESTURE. 

§  357.    Delivery :  Gesture  :  its  Nature  and  Divisions. 

Gesture  consists  in  the  adaptation  of  the  motions  of  the 
countenance,  and  of  the  other  portions  of  the  body,  to  the 
ideas  and  language  of  the  speaker.  Its  influence  upon 
the  minds  and  feelings  of  an  audience  is  often  more  power- 
ful than  that  of  the  words,  since  it  addresses  the  eye,  the 
medium  of  the  most  direct  and  forcible  impressions,  and 
represents  the  thoughts  and  emotions  of  the  orator,  not  by 
mere  symbols,  but  in  actual  operation.  Nor  are  its  meth- 
ods less  diversified  than  those  of  speech,  for  Cicero  tells  us 
that  his  friend  Roscius,  the  actor,  could  express  by  gesture 
every  idea  that  he  himself  could  clothe  in  words.  Its  various 
forms,  for  purposes  of  explanation,  may  be  grouped  and 
considered  under  these  three  heads  :  (i)  The  general  posi- 
tion of  the  body;  (2)  The  expression  of  the  countenance; 
(3)  The  use  of  the  head,  arms,  and  hands  in  gesticulation. 

§  358.  Delivery  :  Gesture  :  General  Position  of  the  Body. 
Four  attitudes,  or  general  positions  of  the  body  as  a  whole, 
are  known  to  oratory.  In  the  first  position,  the  right  foot 
is  advanced  and  the  weight  of  the  body  is  supported  by  it, 
the  left  foot  touching  the  ground  lightly,  with  its  heel  a  few 
inches  behind  the  right.  In  the  second  position,  the  loca- 
tions of  the  feet  are  reversed,  the  left  foot  being  thrust  for- 
ward to  support  the  body,  while  the  right  recedes.  These 
are  the  attitudes  of  aggression,  suitable  to  salutation,  to  inter- 
rogatory and  invective,  to  aversion  toward  things  absent,  to 
appeal  except  when  made  to  powers  invisible,  to  anxiety  or 
308 


OF  GESTURE.  §  359 

despair  concerning  the  present,  to  the  description  of  objects 
near  at  hand,  or  below  the  line  of  the  horizon,  or  behind  the 
speaker,  or  already  past,  and  to  all  efforts  to  attract  attention 
or  to  impress  the  views  of  the  speaker  on'the  hearer.  The 
third  position  differs  from  the  first,  and  the  fourth  from  the 
second,  only  in  that  the  weight  of  the  body  is  in  each  sup- 
ported by  the  rearward  foot.  These  are  attitudes  of  repose, 
to  be  assumed  whenever  the  orator  is  engaged  in  mere  nar- 
ration, in  describing  objects  before  him  in  the  distance  or 
above  the  horizon  line,  in  appeals  to  the  invisible  powers,  in 
expressing  amazement  or  remorse,  and  in  manifestations  of 
fear,  repulsion,  or  horror  toward  things  present.  These  are 
the  only  general  positions  of  the  body  proper  for  an  orator. 
There  is  no  occasion  when  he  should  stand  heel  to  heel, 
or  with  straddled  limbs  each  equally  advanced. 

§  359.    Delivery  :  Gesture  :  Changing  the  Positions  of  the 
Body. 

A  change  from  one  of  these  positions  to  another  becomes 
necessary  with  every  change  of  subject,  or  when  a  different 
portion  of  the  audience  is  to  be  addressed.  A  frequent 
shifting  of  positions  is,  however,  unadvisable,  giving  to  the 
orator  an  appearance  of  anxiety  and  restlessness ;  and  this 
should  be  remembered  when  preparing  the  oration,  in  order 
that  the  subjects  may  be  so  arranged  as  to  avoid  it.  To 
change  with  ease  and  grace  from  one  attitude  of  aggression 
to  another,  the  backward  foot  should  be  moved  forward  and 
receive  the  weight  of  the  body,  which  turns  at  the  same  time 
to  front  the  new  direction,  while  the  other  foot  falls  gently  in 
the  rear.  To  change  from  one  attitude  of  repose  to  another, 
the  forward  foot  is  carried  outward  to  the  right  or  left,  the 
weight  of  the  body  is  then  thrown  upon  it,  and  the  other  foot 
is  advanced  sidewise  to  its  place.  To  change  from  a  posi- 
tion of  aggression  to  one  of  repose,  the  backward  foot  slides 
farther  backward,  receiving  the  weight  of  the  body,  and  the 

309 


$  359  FORENSIC   ORATORY. 

forward  foot  is  drawn  back  to  its  former  distance  from  the 
other.  To  change  from  a  position  of  repose  to  one  of  ag- 
gression, the  forward  foot  moves  forward,  the  weight  of  the 
body  is  transfered  to  it,  and  the  backward  foot  follows  to  its 
proper  interval  behind  the  other. 

§  360.  Delivery  :  Gesture  :  General  Positions  of  the  Body : 
Carriage  of  Head  and  Limbs :  Faults  of  Carriage. 
Except  in  some  peculiar  gestures  the  head  and  body  are 
to  be  erect,  and  inclined  backward  or  forward  to  suit  the 
different  positions  just  described.  The  arms,  unless  in  use 
in  making  gestures,  should  hang  easily  by  the  side  of  the 
body,  and  the  legs  be  kept  straight  and  firm.  The  attitude 
of  the  orator  should  be  one  of  entire  self-command.  An 
aimless  swinging  of  the  arms,  twiddling  the  hands  at  the 
sides  or  putting  them  in  the  pockets  or  the  breast,  standing 
upon  one  leg  and  bending  the  other  or  allowing  it  to  hang 
down  uselessly,  swaying  from  side  to  side,  wandering  back 
and  forth  while  talking,  eating  or  drinking  or  conversing  in  the 
pauses  of  the  speech,  or  any  other  posture  or  action  incon- 
sistent with  the  responsible  task  in  which  he  is  engaged  or 
with  the  evident  absorption  of  all  his  energies  in  its  perform- 
ance, exhibits  him  as  weak  in  purpose,  uncultured  in  the 
rules  of  oratorical  propriety,  or  indifferent  to  the  welfare  of  his 
cause.  In  an  earnest,  determined  speaker,  conscious  of  the 
merits  of  his  claims  and  devoted  for  the  time  being  to  their 
vindication,  no  such  symptoms  of  self-abandonment  are  ever 
visible.  The  strength  of  his  own  convictions,  and  the  inten- 
sity of  his  desire  to  prevail  upon  his  hearers  to  adopt  them, 
manifest  themselves  in  every  position  of  his  body  and  every 
motion  of  his  limbs.  But  dignity  of  carriage  must  not  ap- 
proach the  opposite  extreme,  and  degenerate  into  stiffness  and 
frigidity.  These  are  faults  less  grave  indeed  than  the  preced- 
ing, yet  into  neither  will  the  orator  be  led,  if  he  appreciates  the 
purposes  of  oratory,  and  discipline  has  taught  him  self-control. 
310 


OF  GESTURE.  §  36 1 

§  361.  Delivery :  Gesture :  Expression  of  the  Counte- 
nance. 
The  human  features,  and  especially  the  mouth  and  eyes, 
are  exponents  of  thought  and  feeling  often  more  powerful 
than  the  utterances  of  the  tongue.  Every  sentiment  of  the 
heart,  almost  every  conception  of  the  mind,  imprints  its  own 
peculiar  mark  upon  the  countenance.  Love  and  hatred, 
joy  and  sorrow,  fear  and  hope,  confidence  and  modesty, 
find  here  their  full  expression,  and  in  this  silent  language  we 
threaten  or  implore,  invite  or  repel,  refuse  or  acquiesce,  de- 
spise or  pity  or  condemn.  Upon  the  action  of  the  features 
in  oratory,  and  upon  the  methods  by  which  the  orator  may 
teach  his  eye  to  flash,  his  lip  to  quiver,  and  his  whole  frame 
to  throb  with  the  emotions  which  he  in  vain  endeavors  to 
suppress,  a  volume  might  be  written.  But  the  principle  to 
which  all  such  methods  are  reducible  is  this  :  to  follow  na- 
ture. The  face  of  early  childhood  unerringly  reveals  the 
tempests  which  disturb,  the  sunshine  which  irradiates,  the 
ooul.  The  harsh  antagonisms  of  later  years  compel  the  youth 
to  restrain  these  manifestations  of  his  feelings  in  order  to 
escape  ridicule  or  blame,  and  this  restraint  by  slow  degrees 
creates  for  him  an  artificial  face  which  hides  or  falsely  rep- 
resents the  man  within.  The  training  of  the  orator  in  this 
respect,  like  that  of  the  actor,  consists  in  a  return  to  nature. 
He  must  break  the  spell  which  holds  his  features  in  their 
frozen  slumber.  He  must  withdraw  the  unconscious  tyranny 
which  his  will  maintains  over  the  muscles  of  his  face,  and  re- 
store to  his  emotions  their  ancient  and  legitimate  control. 
This  return  to  nature  is  promoted  :  first,  by  the  habit  of  pre- 
senting to  his  imagination  the  minute  details  of  conditions 
and  occurrences,  identifying  himself  with  the  objects  or  the 
persons  to  whom  they  relate,  and  thereby  learning  to  feel  the 
sentiments,  which  he  expresses,  with  such  intensity  as  the  sen- 
sitiveness of  his  disposition  will  permit ;  second,  by  practising 
in  entire  privacy  the  declamation  of  original  or  selected  com- 

311 


§  361  FORENSIC   ORATORY. 

positions  whose  thoughts  affect  him  deeply,  giving  free  rein 
to  the  emotions  thus  aroused,  not  studying  to  mobilize  his 
countenance,  but  concentrating  his  attention  on  the  subject 
and  leaving  his  features  to  respond  to  its  ideas  as  they  will. 
To  watch  the  play  of  feeling  on  the  faces  of  accomplished 
orators  and  actors  is  also  useful,  not  to  become  their  servile 
imitator,  for  nature  never  copies,  but  to  assure  himself  of 
the  immeasurable  energy  of  these  forms  of  expression,  and 
to  encourage  him  to  cast  off  all  restraint,  and  abandon  his 
own  features  to  the  dominant  impulses  of  his  heart.  To  the 
extent  of  such  a  training,  however,  nature  places  this  limita- 
tion, that  no  expression  on  the  countenance  shall  differ  from 
or  shall  exceed  the  character  or  degree  of  the  emotion  which 
it  is  supposed  to  represent,  or  be  inconsistent  with  the  evi- 
dent disposition  of  the  speaker.  Every  excess  in  facial  ges- 
ture is  a  mere  grimace,  ridiculous  in  itself,  intolerable  to  the 
earnest  and  intelligent  hearer,  and  indicates  that  the  orator 
is  lacking  either  in  good  sense  or  in  sincerity.  In  its  devel- 
opement  of  a  tendency  to  this  excess  lies  the  danger  of 
every  mode  of  artificial  training  which  is  directed  to  the  mo- 
tions of  the  countenance,  rather  than  to  the  imagination  and 
feelings  of  the  speaker  and  to  the  deliverance  of  his  features 
from  his  habitual  and  intentional  control. 

§  362.  Delivery:  Gesture:  Motions  of  the  Head  and  Body. 
Gesticulation,  or  the  expression  of  particular  sentiments 
by  means  of  particular  and  appropriate  actions,  is  performed 
either  by  the  head,  the  hands  and  arms,  or  the  whole  body. 
Motions  of  the  head  or  body  are  rarely  employed  except  in 
connection  with  gestures  by  the  hands  and  arms,  and  when- 
ever they  are  not  appropriate  they  constitute  faults  of  a 
serious  character.  But  in  connection  with  the  arms  and 
hands,  the  head  is  in  constant  and  the  body  in  frequent 
action.  The  head  turns  upward  or  downward  or  to  the  side, 
so  that  the  eye  may  follow  every  movement  of  the  hand,  ex- 
312 


OF   GESTURE.  §  364 

cept  in  gestures  of  repulsion  or  aversion,  where  it  gazes  in  a 
contrary  direction.  Sometimes  the  motion  of  the  head  cor- 
responds with  that  of  the  hand,  as  where  the  finger  and  the 
head  together  nod  in  interrogatory,  or  the  head  shakes  as  the 
hand  falls  in  a  negation.  The  body  moves  as  if  yielding  to 
the  momentum  caused  by  the  gesture  of  the  hand,  especially 
in  a  double  gesture,  bowing  forward  as  the  hands  come  down 
in  solemn  emphasis,  or  starting  backward  as  they  are  raised 
in  adjuration  or  amazement.  In  strong  aversion,  where  both 
hands  are  used,  not  only  the  head  but  the  whole  body  is 
turned  away  from  the  detested  object. 

§  363.  Delivery:  Gesture:  Motions  of  the  Arms  and 
Hands:  Single  Gestures. 
Gestures  of  the  hands  and  arms  are,  however,  the  prin- 
cipal methods  of  expressing  and  emphasizing  thought. 
These  are  divided  into  two  great  classes :  single  gestures 
and  double  gestures.  Single  gestures  are  those  which  are 
performed  with  one  hand  and  arm.  Quintilian  and  other 
ancient  writers  state  that  the  right  arm  alone  should  be  used 
for  this  purpose,  and  that  the  left  should  never  be  employed 
except  in  double  gestures.  Later  authors  permit  the  use  of 
the  left  arm  upon  rare  occasions,  where  contrasts  are  being 
made,  or  where  objects  referred  to  are  on  the  left  hand  of 
the  speaker.  Single  gestures  are  of  three  classes,  palm-up, 
palm-down,  and  index-finger ;  and  each  of  these  is  divided 
into  lower,  middle,  and  upper,  according  as  the  stroke  of 
the  gesture  terminates  below,  on  the  line  of,  or  above  the 
level  of  the  shoulder.  Each  of  these  has  its  own  peculiar 
significance. 

§  364.     Delivery:    Gesture:    Motions    of    the    Arms    and 
Hands:    Single  Right  Hand   Gestures. 
The  lower  paim-up  gesture  is  an  emphatic  gesture,  and  is 
also  used  to  denote  objects  near  the  speaker  and  not  far 

"3   T  3 

3  ':> 


§  364  FORENSIC   ORATORY. 

from  the  ground.  The  middle  or  level  palm-up  gesture  is 
still  more  emphatic,  and  is  employed  in  strong  interrogation, 
in  earnest  exhortation,  and  in  describing  persons  and  things 
at  some  distance.  The  upper  palm-up  gesture  is  of  the 
highest  emphasis,  belongs  to  spirited  appeals  for  action,  and 
to  the  description  of  objects  above  the  line  of  the  horizon. 
The  lower  palm-down  gesture  is  expressive  of  scorn,  rebuke, 
and  condemnation.  The  middle  palm-down  gesture  is 
appropriate  to  contempt  mingled  with  command,  and,  with 
the  hand  moving  horizontally,  is  also  used  in  describing  an 
expanse  of  land  or  water,  or  any  spectacle  supposed  to  be 
passing  before  the  eye.  The  upper  palm-down  gesture  is  one 
of  severe  denunciation,  threat,  or  extermination.  This  ges- 
ture has  a  double  stroke,  one  terminating  high  in  the  air  where 
the  hand  pauses  for  an  instant,  the  other  falling  to  about  the 
level  of  the  waist  as  the  words  of  wrath  are  spoken. 

§  365.  Delivery:  Gesture:  Motions  of  the  Arms  and 
Hands:  Single  Left  Hand  Gestures:  Index-Fin- 
ger Gestures. 
There  are  also  three  other  gestures,  all  made  with  the  left 
hand,  and  called  "  palm-up  off,"  the  palm  being  up  and  the 
speaker  standing  in  the  first  position.  The  lower  one  of 
these  denotes  things  aside,  passed  by,  neglected.  The 
middle  signifies  distant  events  in  the  past,  distant  objects 
and  persons,  or  objects  far  behind  the  speaker,  and  also 
scorn  of  a  dignified  and  compassionate  character.  The 
upper  is  reverential,  devotional,  used  in  alluding  to  the 
invisible  world  above,  the  stars,  or  eternity.  The  lower 
index-finger  gesture  is  used  to  indicate  objects,  or  to  note 
points,  or  to  express  contempt.  The  middle  index-finger 
gesture  is  appropriate  to  interrogatory  and  adjuration  of  a 
person  present,  also,  when  in  rapid  motion  horizontally,  it 
expresses  swiftness  and  strength  combined.  The  upper 
index-finger  gesture  calls  attention  to  particular  objects  at  a 

314 


OF  GESTURE.  §  367 

high  elevation,  or,  in  its  course  as  the  hand  rises,  is  expres- 
sive of  the  soaring  either  of  thoughts  or  material  objects. 

§  366.  Delivery:  Gesture:  Motions  of  the  Arms  and 
Hands:  Course  of  Single  Gesture:  Position  of 
the  Fingers  and  Body. 
In  all  these  gestures  the  hand  passes  through  a  curve, 
called  the  course  of  the  gesture,  from  its  natural  position 
by  the  body  to  the  point  where  the  gesture  terminates,  and, 
stopping  there  an  instant,  falls  gently  back  to  its  former 
place  of  repose.  Except  in  the  double-stroke  gesture,  called 
the  upper  palm-down,  this  curve  is  always  inward  toward 
the  median  line  of  the  body,  and  rises  a  little  above  the 
point  where  the  gesture  is  to  terminate.  In  all  these  ges- 
tures, also,  the  whole  arm  moves  freely  together,  the  elbow 
being  but  slightly  flexed,  and  never  held  against  the  side 
while  the  forearm  alone  is  in  action.  In  the  palm-up  and 
palm-down  gestures  the  fingers  are  nearly  straight  but  not 
stiffened,  and  closed  together  with  the  thumb  turned  upward 
and  just  removed  from  the  side  of  the  forefinger.  In  the 
index-finger  gestures,  the  forefinger  is  extended,  the  thumb 
stands  moderately  distant  from  it,  and  the  other  fingers  are 
curved  toward  the  hand  but  not  shut  together.  In  every 
case  except  the  "off"  gestures,  the  position  of  the  body 
corresponds  to  the  hand  with  which  the  gesture  is  made ; 
the  second  or  fourth  position  being  assumed  whenever  the 
left  hand  is  to  be  used,  and  at  other  times  the  first  or  third 
position  being  retained. 

§  367.  Delivery :  Gesture :  Motions  of  the  Arms  and 
Hands :  Double  Gestures. 
Double  gestures  are  those  in  which  both  hands  are  em- 
ployed at  once.  There  are  no  "off"  gestures  among  them, 
and  but  one  index-finger  gesture.  They  are  lower,  middle, 
and  upper  palm-up ;  lower,  middle,  and  upper  palm-down  ; 

315 


§  367  FORENSIC   ORATORY. 

with  several  peculiar  gestures  not  capable  of  being  classified. 
They  are  produced,  so  far  as  each  hand  is  concerned,  in  the 
same  manner  as  the  single  gestures  of  the  same  class.  The 
lower  double  palm-up  gesture  signifies  space  or  local  extent 
near  the  speaker ;  it  is  also  used,  instead  of  the  single  one, 
as  a  gesture  of  emphasis,  and  is  of  great  value  as  a  terminat- 
ing gesture  at  the  end  of  a  sentence.  The  middle  double 
palm-up  gesture  describes  wider  space,  large  assemblages  of 
people,  or  the  whole  earth.  The  upper  double  palm-up  ges- 
ture expresses  grand  and  lofty  objects,  sublime  and  inspiring 
thoughts,  and  is  the  appropriate  gesture  of  apostrophe  and 
solemn  adjuration.  The  lower  double  palm-down  gesture 
carries  the  idea  of  rebuke,  casting  down,  scorn,  contempt, 
like  the  single  gesture  of  the  same  class.  The  middle 
double  palm-down  gesture  expresses  speed  and  extent  at 
once,  as  in  descending  or  in  violent  repulsion,  and  with  a 
horizontal  motion  of  the  arms  at  the  end  of  the  gesture  con- 
veys the  idea  of  vastness  and  quietness  combined.  The 
upper  double  palm-down  gesture  has  a  double  stroke,  like 
the  single ;  the  upper  stroke  expressing  admiration  or  sur- 
prise ;  the  downward  stroke  denoting  strong  emphasis,  or 
entire  destruction.  The  double  index-finger  gesture  is  per- 
formed by  placing  the  right  index-finger  on  the  palm  of  the 
left  hand,  and  moving  it  thereon  as  if  striking  time.  This 
gesture  is  used  in  noting,  particularizing,  discriminating  be- 
tween different  objects,  or  in  stating  points  of  argument. 

§  368.    Delivery :    Gesture :    Motions    of   the    Arms    and 

Hands :    Imitative  Double  Gestures. 

Besides  these  gestures  there  are  others  less  used,  and  rather 

imitations  of  the  conduct  of  persons  while  under  the  emotions 

described  than  true  artificial  modes  of  expressing  thought. 

Thus  to  place  the  palms  of  the  hands  together  before  the 

heart,  with  the  fingers  pointing  upward  and  the  head  raised, 

is  a  gesture  of  love  and  thankfulness.     Crossing  the  hands 

316 


OF   GESTURE.  §  369 

upon  the  breast,  with  the  head  raised,  is  appropriate  to  sen- 
timents of  adoration.  The  left  hand  lower  palm-down,  com- 
bined with  the  right  hand  upper  palm-up,  is  a  gesture  of 
warm  welcome,  of  salutation,  or  of  command  to  distant  per- 
sons, —  the  eye  looking  in  the  direction  of  the  right  hand. 
Both  hands  raised  to  the  middle  height,  open,  palms  from 
the  body,  and  head  turned  away  from  the  hands,  expresses 
disgust,  abhorrence ;  while  the  arms  spread  out  at  middle 
height,  hands  open  towards  the  hearer,  and  the  head  facing 
in  the  same  direction,  denotes  fright  and  alarm.  The  hands 
crossed  with  the  palms  outward  on  the  breast,  and  then 
thrown  suddenly  to  their  full  length  at  middle  height,  is  the 
strongest  of  repelling  gestures. 

§  369.  Delivery  :  Gesture:  Motions  of  the  Arms  and 
Hands  :  Imitative  Single  Gestures. 
Of  single  gestures  there  are  also  special  forms  of  a  similar 
character.  The  right  hand  pressed  upon  the  heart  is  appro- 
priate to  expressions  of  pity,  compassion,  appeal  for  sympa- 
thy, and  other  personal  feelings  of  the  speaker.  Striking  the 
heart  with  the  point  of  the  right  thumb,  the  fingers  being 
closed,  is  a  gesture  of  foreboding,  guilt,  or  remorse.  The 
open  right  hand  brought  palm  forward  to  the  heart  and 
struck  out  horizontally  is  a  gesture  of  repulse,  as  also  of 
speed  and  force.  The  right  hand  with  the  index-finger  up 
and  raised  to  a  level  with  the  ear,  at  half  an  arm's  length 
from  it,  is  a  gesture  of  listening,  — the  ear  at  the  same  time 
being  turned  toward  the  expected  sound,  the  body  leaning 
in  the  same  direction,  and  the  eyes  fixed  on  vacancy.  The 
right  hand  index-finger  raised  gradually  from  the  natural 
hanging  posture  to  full  height  is  a  gesture  describing  the 
upward  flight  of  birds,  the  passing  of  the  soul,  the  elevation 
of  the  thoughts  to  heaven.  The  same  gesture  with  the  open 
hand,  but  with  wider  sweep  and  rapid  motion,  expresses 
sudden  alarm,  fearful  emergency,  the  war  of  the  elements, 

317 


§  369  FORENSIC    ORATORY. 

or  any  other  startling  idea.  Pressure  of  one  or  both  hands 
on  the  forehead  with  a  drawing  motion  indicates  fixed  men- 
tal agony  or  despair,  while  pressing  the  folded  hands  upon 
the  breast  denotes  sudden  impulses  of  distress  and  anguish 
of  mind. 

§  370.  Delivery:  Gesture:  Motions  of  the  Arms  and 
Hands  :  Alternate  Gestures  :  Continuous  Ges- 
tures. 
There  are,  besides  these,  what  are  known  as  alternate  ges- 
tures and  continuous  gestures.  The  alternate  gesture  is 
used  for  the  purpose  of  distinguishing,  contrasting,  and  com- 
paring. It  consists  of  two  corresponding  gestures,  one  of 
the  right  hand,  the  other  of  the  left,  the  second  commencing 
just  as  the  first  begins  to  fall  into  its  natural  position.  Con- 
tinuous gestures  are  made  by  the  same  hand  if  single,  of 
course  by  the  same  hands  if  double,  and  consist  of  two  or 
more  gestures,  the  former  sliding  into  the  latter  without  any 
intermediate  coming  of  the  hand  to  repose.  It  is  appropri- 
ate where  ideas,  more  or  less  antithetical,  closely  succeed 
each  other  in  some  connected  thought,  and  is  a  gesture  of 
conjunctive  comparison,  as  the  alternate  gesture  is  of  dis- 
junctive comparison. 

§  371.     Delivery:    Gesture:     Motions    of    the   Arms    and 

Hands:    Importance    of   Special   Training. 

The  study  of  this  subject  of  gesticulation  is  of  the  very 

highest  importance  to  the  orato-.     The  child  is  naturally 

graceful.     The  man  has  become  habitually  awkward.     The 

one  gesticulates  boldly,  unconsciously,  and  freely  ;  the  other, 

self-consciously,  angularly,  and  with  constraint.     The  faults 

of  the  latter  must  be  educated  out  of  him,  as  they  have  been 

educated  into  him ;  and  this  can  be  done  only  by  constant 

practice,  under  some  competent  instruction,  either  personal 

according  to  known  rules  or  under  the  guidance  of  a  trained 

318 


OF   GESTURE.  §  3/2 

elocutionist.  Still  it  is  an  art  which  can  be  mastered  by 
almost  any  one,  and  those  who  do  not  excel  in  it  must,  there- 
fore, attribute  their  failure  to  their  own  neglect. 

§  372.  Delivery  of  the  Different  Parts  of  an  Oration:  Pro- 
priety the  most  Essential  Quality  of  Delivery. 
Each  of  the  parts  of  an  oration  has  its  own  style  of  de- 
livery. At  the  commencement  it  should  be  characterized 
by  calmness  and  moderation,  a  grave  countenance,  erect 
attitude,  and  few  gestures.  In  the  statement  the  manner 
grows  more  decided  and  didactic,  the  gestures  are  still  few 
but  pointed,  and  the  passions  gently  but  skilfully  aroused. 
The  proof  and  refutation  are  varied  and  forcible,  gestures 
become  more  frequent,  displays  of  feeling  are  now  and  then 
permitted,  and  description  is  more  extensive  and  florid  in  its 
tone.  In  the  peroration  all  the  power  of  the  orator  is  in 
activity,  so  far  as  is  appropriate  to  the  occasion,  and  every 
art  is  employed  to  give  the  hearers  a  favorable  impression  of 
his  cause.  Throughout  the  whole  oration,  however,  one 
rule  must  be  observed,  that  of  propriety.  There  must  be 
harmony  between  the  cause,  the  thought,  and  its  delivery. 
A  great  cause  demands  great  thoughts  and  splendid  action. 
An  unimportant  cause,  with  equal  imperativeness,  demands 
thoughts  of  a  common  order  and  a  mild  delivery.  The 
orator  should  also  keep  within  his  own  powers.  Whatever 
weapons  he  possesses,  and  knows  how  to  use,  let  him  use 
them  in  his  most  effective  manner.  But  he  should  never 
overreach  himself,  striving  with  subjects,  thoughts,  or  modes 
of  action  that  are  too  grand  for  him,  mindful  of  the  fate  of 
those  who  undertook  to  wield  the  spear  of  Achilles,  and  of 
him  who  in  his  boyish  presumption  sought  to  guide  the 
Chariot  of  the  Sun. 


319 


CONCLUSION. 

In  concluding  this  discussion  of  the  theory  and  practice 
of  the  Art  of  Forensic  Oratory,  the  author  most  earnestly 
desires  to  impress  upon  his  readers  the  conviction  that  strict 
obedience  to  these  rules  opens  to  the  young  advocate  the 
only  possible  pathway  to  success.  Much  that  has  been  pre- 
scribed doubtless  appears,  as  it  really  is,  mechanical  and 
artificial  in  the  last  degree.  But  this  is  true  of  every  species 
of  human  training.  The  artist,  who  entrances  generations 
by  his  wondrous  forms  and  coloring,  acquired  his  skill  at  the 
blackboard,  the  paint-mill,  and  the  mixing  slab.  The  musi- 
cian, who  thrills  the  hearts  of  his  hearers  with  the  notes  which 
he  produces,  was  once  the  slave  of  hard  and  ruthless  teachers, 
who  held  him  hours  together  pounding  or  scraping  out  his 
scales.  The  advocate  can  expect  to  obtain  the  mastery  of 
his  art  through  no  other  method.  He  must  be  content  to 
learn  from  the  experience  of  ages,  to  forego  his  own  will,  to 
put  aside  the  juvenile  notion  that  he  is  a  natural  genius  and 
can  succeed  by  inspiration  without  rules  or  practice,  and  to 
devote  himself  to  such  self-discipline  as  is  marked  out  for 
him  by  those  who  have  already  won  their  fame.  And  when 
by  this  means  he  has  developed  in  himself  the  capabilities 
herein  described,  and  by  his  eloquence  holds  courts  and 
legislatures  subject  to  his  will,  he  will  realize  at  last  that 
oratory  is  the  noblest  of  all  human  arts,  and  that  the  orator 
is  not  born,  but  made. 


320 


APPENDIX    I. 


COMPENDIUM   OF   LOGIC. 

The  human  intellect  performs  three  operations :  (i)  It  appre- 
hends, or  perceives ;  (2)  It  judges,  or  asserts ;  (3)  It  reasons, 
or  by  comparing  two  things  with  a  third  infers  their  agreement 
or  disagreement  with  each  other. 

An  act  of  apprehension  expresses  itself  in  a  word  or  term 
denoting  some  object  visible  or  invisible.  An  act  of  judging 
expresses  itself  in  a  proposition  composed  of  a  subject,  a  predi- 
cate, and  the  verb  "  is,"  in  which  the  condition  or  attribute 
indicated  by  the  predicate  is  affirmed  of  the  subject.  An  act 
of  reasoning  expresses  itself  fully  in  three  propositions,  in  the 
first  of  which  one  of  the  two  things  is  compared  with  the  third; 
in  the  second,  the  other  of  the  two  things  is  compared  with  the 
third;  in  the  last,  the  identity  or  diversity  of  the  two  things  is 
asserted. 

An  act  of  reasoning  is  founded  on  the  following  self-evident 
truths:  (1)  In  just  such  proportion  as  two  things  agree  with 
the  same  third  thing  they  will  also  agree  with  each  other; 
(2)  In  just  such  proportion  as  two  things  differ  in  the  degree 
of  their  agreement  with  the  same  third  thing,  they  will  disagree 
with  each  other.  For  example :  Two  sticks  agree  in  length 
with  the  same  foot-rule.  Each  of  course  will  agree  in  length 
with  the  other.  Again,  of  two  sticks  one  agrees  in  length  with 
a  foot-rule,  the  other  is  but  half  as  long  as  the  foot-rule.  Of 
course  one  stick  will  be  only  half  as  long  as  the  other.  But  it 
is  not  true  that,  if  two  things  disagree  with  a  third  thing,  they 
will  also  disagree  with  each  other.  Two  sticks,  for  instance, 
disagree  in  length  with  a  foot-rule.  But  nevertheless  each  may 
be  two  feet  long,  or  of  any  other  equal  length.  Or  one  may 
be  any  number  of  times  longer  than  the  other.     In  an  act  of 

21 


322  APPENDIX. 

reasoning  founded  on  these  truths,  one  of  the  two  things  com- 
pared must,  therefore,  always  agree  with  the  third  thing.  If 
the  other  also  agrees  with  the  third  thing,  the  two  compared 
things  agree  with  each  other.  If  the  other  differs  from  the 
third  thing,  the  two  compared  things  differ  from  each  other. 
All  human  reasoning,  to  whatever  subject  it  may  relate,  is 
merely  the  repetition  of  this  simple  method  of  comparison,  in 
accordance  with  these  fundamental  truths. 

The  complete  expression  of  an  act  of  reasoning  is  called 
a  syllogism.  The  first  proposition  is  known  as  the  major 
premise j  the  second,  as  the  minor  premise ;  the  last  as  the 
conclusion.  The  three  things  involved  in  the  comparison  are 
called  terms ;  the  third,  with  which  the  two  others  are  com- 
pared and  which  does  not  appear  in  the  conclusion,  being  the 
middle  term ;  that  one  of  the  other  two  which  forms  the  sub- 
ject of  the  conclusion  being  the  minor  term;  and  that  which 
forms  the  predicate  of  the  conclusion  being  the  major  term. 
Take  this  syllogism,  for  example : 

Major  premise :   Every   tyrant   is   a  person   deserving  of 

death ; 
Minor  premise  :  Nero  is  a  tyrant ; 

Conclusion :    Therefore,    Nero   is    a  person   deserving  of 
death. 

Here,  the  middle  term  is  "tyrant,"  the  minor  term  is 
"  Nero  " ;  the  major  term  is  "  a  person  deserving  of  death."  In 
the  major  premise,  the  middle  term  is  compared  with  the  major 
term,  and  the  identity  of  "tyrant  "  with  "a  person  deserving  of 
death"  is  asserted.  In  the  minor  premise,  the  middle  term 
"tyrant"  is  compared  with  the  minor  term  "Nero,"  and  the 
identity  of  "  Nero  "  and  "tyrant"  is  affirmed.  In  the  conclu- 
sion, the  minor  and  major  terms,  having  been  found  to  be 
identified  with  the  middle  term,  are  declared  to  be  identified 
with  each  other. 

Although  an  act  of  reasoning  can  be  fully  expressed  only  in 
the  form  of  a  syllogism,  which  completely  describes  its  terms 
as  things  capable  of  comparison  with  one  another,  yet  in  actual 
reasoning  abbreviations  of  these  descriptions  are  commonly 
employed.  Thus,  in  the  foregoing  syllogism,  the  propositions 
may  be  more  succinctly  stated  as  follows: 


COMPENDIUM    OF   LOGIC.  323 

Every  tyrant  deserves  death  ; 

Nero  is  a  tyrant : 

Therefore,  Nero  deserves  death. 

It  may  at  first  seem  difficult  to  compare  the  term  "  tyrant " 
with  the  term  "deserves  death,"  this  latter  phrase  as  it  stands 
expressing  rather  a  quality  than  a  thing.  But  if  "deserves 
death  "  be  amplified  to  contain  its  entire  meaning  as  "  a  person 
who  deserves  death,"  the  difficulty  disappears.  Such  amplifi- 
cation can  be  made  in  every  case,  where  the  brevity  of  the 
proposition  excludes  words  necessary  to  represent  the  terms  as 
things  concerning  which  identity  or  diversity  can  be  asserted. 
For  example :  "  Every  virtue  is  commendable  "  signifies  "  Every 
virtue  is  a  thing  which  deserves  to  be  commended  " ;  "  Every 
man  is  an  animal "  is  equivalent  to  "  Every  man  is  a  being 
possessing  the  attributes  of  an  animal,''  etc. 

So  also  the  form  of  the  syllogism  may  be  abandoned,  and  the 
act  of  reasoning  may  be  expressed  in  a  single  proposition,  called 
an  enthymetne.  For  example:  "Nero  deserved  death  because 
he  was  a  tyrant " ;  or,  "  Nero  was  a  tyrant,  and  therefore  de- 
served death."  This  is  a  sufficient  statement  for  any  rea- 
soning process  concerning  the  truth  of  whose  premises,  and 
the  certainty  of  whose  conclusion,  there  is  no  doubt.  But  when- 
ever the  truth  of  the  premises  or  the  certainty  of  the  con- 
clusion is  disputed,  the  act  of  reasoning  should  be  expressed 
in  complete  syllogistic  form,  with  each  of  its  terms  fully  de- 
scribed, in  order  that  the  tests  of  truth  and  certainty  may  be 
applied. 

An  act  of  reasoning  may  be  defective  in  one  or  both  of  two 
wavs:  First,  when  the  assertion  of  the  premises  concerning  the 
agreement  of  the  major  and  minor  terms  with  the  middle  term 
is  untrue ;  Second,  when  the  conclusion  does  not  follow  from  the 
premises.  The  first  defect  is  occasioned  either  by  falsehood 
in  the  major  or  the  minor  premise  taken  separately,  or  by  using 
the  middle  term  in  one  aspect  when  comparing  it  with  the  major 
term,  and  using  it  in  a  different  aspect  when  comparing  it  with 
the  minor  term.  If  the  defect  results  from  falsehood  in  the 
individual  premises,  they  do  not  warrant  any  conclusion  what- 
ever, even  though  in  words  they  may  appear  to  do  so.  For 
example : 


324  APPENDIX. 

Every  tyrant  is  dead ; 
Cesar  was  a  tyrant ; 
Therefore  Cesar  is  dead. 
Here  the  major  premise  is,  and  the  minor  premise  may  be, 
false  in  fact ;  and  if  so,  the  conclusion  has  no  basis  in  the  argu- 
ment, though   as  an   independent   statement  it  may  be  true. 
Such   falsehood   in   the   individual   premises   may  arise   from 
the  following  causes. 

First,  the  whole  premise  may  be  a  pure  assumption,  as  in 
the  vicious  circle,  where  each  of  two  propositions  is  proved  by 
the  other,  or  in  the  false  supposition,  where  a  fact  unproved 
is  taken  for  granted,  or  in  the  petitio  principii  or  begging  the 
question,  where  the  conclusion  is  a  mere  repetition  in  other 
language  of  one  of  the  premises. 
As  an  example  of  the  vicious  circle : 

If  the  sun  is  stationary,  the  earth  turns  on  its  axis; 
But  the  sun  is  stationary ; 
Therefore,  the  earth  turns  on  its  axis. 
If  the  earth  turns  on  its  axis,  the  sun  is  stationary; 
But  the  earth  turns  on  its  axis ; 
Therefore,  the  sun  is  stationary. 
The  vicious  circle  requires  at  least  two  syllogisms  in  which 
the  conclusion  of  each  is  taken  as  a  premise  of  the  other.     As 
seen  in  this  example,  the  truth  of  each  conclusion  is  dependent 
on  the  truth  of  the  other,  and  hence  neither  derives  any  support 
from  the  apparent  argument. 

For  an  example  of  the  false  supposition : 
Any  addition  to  the  bulk  of  the  matter   contained  in  a 

vessel  already  full  will  cause  it  to  overflow; 
To  place  a  fish  in  a  vessel  full  of  water  will  not  cause  it  to 

overflow ; 
Therefore,  to  place  a  fish  in  a  vessel  full  of  water  adds 
nothing  to  the  bulk  of  the  matter  which  it  contains. 
Here  the  minor  premise  is  a  false  supposition,  and  the  con- 
clusion is  consequently  false. 

As  an  example  of  begging  the  question  : 
Everything  that  has  weight  is  ponderable) 
A  stone  has  weight ; 
Therefore,  a  stone  is  ponderable. 


COMPENDIUM   OF   LOGIC.  325 

Here  the  conclusion  and  the  minor  premise  are  identical  in 
meaning,  though  differing  in  words. 

Secondly,  falsehood  arises  by  assuming  that  one  thing  is  the 
effect  of  another  because  the  two  were  coincident  in  time,  place, 
or  circumstances.     For  example : 

Every  person  who  is  mortally  wounded,  and  dies,  is  slain 

by  the  inflicter  of  the  wound ; 
The  deceased  was  mortally  wounded  by  the  accused,  and 

died; 
Therefore,  the  deceased  was  slain  by  the  accused. 
Here  the  major  premise  may  be  false,  for  death  following  a 
mortal  wound  is  not  necessarily  caused  by  it,  and  the  conclu- 
sion therefore  is  not  reliable. 

Thirdly,  the  falsehood  may  arise  from  ignoring  the  real  ques- 
tion in  issue,  and  attempting  to  prove  or  disprove  something 
else  which  apparently,  but  not  actually,  includes  it.  This  is 
called  the  ig?ioratio  elenchi.  For  example,  if  one  should  thus 
argue  against  the  immortality  of  the  human  soul : 

Whatever  is  eternal  has  neither  beginning  nor  end; 
The  human  soul  has  a  beginning; 
Therefore,  the  human  soul  is  not  eternal. 
This  syllogism  ignores  the  real  question,  which  relates  not  to 
eternity  but  to  immortality,  with  which  the  idea  of  a  beginning 
is  not  incompatible. 

Fourthly,  the  falsehood  may  result  from  confounding  the 
essential  attributes  of  a  thing  with  its  accidental  qualities.  For 
example : 

Everything  from  which  evil  comes  is  bad ; 
Evil  comes  from  the  enforcement  of  law; 
Therefore,  the  enforcement  of  law  is  bad. 
Here  the  major  premise,  if  true  in  fact,  must  signify  that  the 
evil  comes  necessarily  and  inevitably  from  the  thing  mentioned. 
But  the  minor,  if  true,  asserts  not  that  evil  inevitably  and  neces- 
sarily comes  from  the  enforcement  of  law,  but  only  as  its  acci- 
dental and  occasional  consequence,  and  thus  lays  no  foundation 
for  the  subsequent  conclusion. 

Fifthly,  falsehood  occurs  from  confounding  what  is  simply 
and  universally  true  of  a  thing  with  what  is  true  in  a  certain 
respect  only.     For  example : 


326  APPENDIX. 

Every  one  who  intentionally  takes  the  life  of  another  wishes 
his  death ; 

The  sheriff  intentionally  takes  the  life  of  the  condemned ; 

Therefore,  the  sheriff  wishes  the  death  of  the  condemned. 
It  is  true  in  a  certain  respect  that  the  intentional  slayer  wishes 
the  death  of  his  victim,  since  the  will  is  involved  in  every  inten- 
tional act.  It  is  also  true  that  the  sheriff  wishes  to  perform  his 
official  duty,  which  includes  the  execution  of  the  condemned, 
and  hence  in  that  respect  wishes  the  death  of  the  condemned. 
But  it  is  not  necessarily  nor  generally  true  that  the  slayer  wishes, 
in  the  simple,  universal  sense,  that  the  life  of  his  victim  should 
be  sacrificed. 

These  five  causes  of  falsehood  cover  most  instances  in  which 
the  individual  premises  can  be  untrue.  The  reasoner  falls  into 
these  falsehoods  either  by  not  formulating  his  syllogism  at  all, 
or  by  stating  its  premises  in  ambiguous  language ;  for  it  is 
scarcely  possible  that  an  examination  of  his  argument,  after  he 
has  reduced  it  to  a  syllogistic  form  and  carefully  expressed  each 
of  its  terms,  should  not  at  once  reveal  to  him  both  his  error  and 
its  cause. 

When  the  individual  premises  are  both  true  in  themselves, 
but  the  middle  term  in  one  is  taken  in  a  different  aspect  from 
that  contemplated  in  the  other,  they  furnish  no  ground  for  any 
conclusion.  This  defect  is  known  as  the  ambiguous  middle. 
For  example : 

Every  tyrant  deserves  death  ; 

Cesar  is  a  tyrant ; 

Therefore,  Cesar  deserves  death. 
If  the  word  "  tyrant "  is  used  in  each  of  these  premises  to 
express  the  same  thing,  the  reasoning  is  correct.  But  if  in  the 
major  premise  it  means  a  cruel  and  unjust  monarch,  and  in  the 
minor  premise  simply  a  severe  and  energetic  administrator  of 
the  law,  it  is  obvious  that  the  two  propositions,  though  severally 
true,  are  falsely  taken  as  related  to  each  other ;  that  the  major 
and  minor  terms  are  not  really  compared  with  any  one  middle 
term,  although  in  words  they  seem  to  be ;  and  hence  that  no 
conclusion  can  be  drawn  from  them. 

To  guard  against  these  two  phases  of  the  first  error  in  reason- 
ing, a  thorough  knowledge  of  the  subjects  considered,  and  a 


COMPENDIUM   OF   LOGIC.  327 

correct  employment  of  the  words  used  in  defining  the  terms,  and 
especially  the  middle  term,  are  necessary.  Without  these  no 
certainty  of  conclusion  ever  is  or  ever  can  be  reached.  Most 
of  the  failures  to  arrive  at  truth  which  attend  the  efforts  of 
those  who  conscientiously  seek  it  result  from  one  or  the  other 
of  these  mistakes,  and  would  be  avoided  if  their  reasoning 
processes  were  characterized  by  less  haste  in  drawing  their 
conclusions,  and  more  care  in  investigating  their  subjects  and 
in  accurately  defining  their  major,  minor,  and  above  all  their 
middle  terms. 

The  defect  which  consists  in  drawing  a  conclusion  that  does 
not  follow  from  the  premises  may  arise  from  several  causes. 
One  of  these  is  the  employment  of  an  undistributed  middle 
term.  A  term  is  distributed  when  it  is  so  used  as  to  include 
every  object  to  which  it  can  be  applied.  In  the  phrases  "  Every 
man,"  "All  men,"  "No  man,"  the  term  "man"  is  distributed; 
in  the  phrases  "  Some  men,"  or  "  Men  "  if  including  less  than 
all  men,  it  is  undistributed.  When  the  middle  term  is  not  dis- 
tributed in  either  of  the  premises,  no  statement  is  made  in  either 
which  necessarily  identifies  the  major  term  with  the  same  part 
of  the  middle  term  with  which  the  minor  term  is  identified,  and 
hence  the  terms  are  not  compared  with  the  same  standard,  and 
no  true  act  of  reasoning  is  performed.  But  if  in  either  premise 
the  middle  term  is  distributed,  and  is  thereby  affirmed  univer- 
sally of  the  major  or  the  minor,  then,  inasmuch  as  the  whole 
necessarily  includes  the  parts,  an  affirmation  of  the  identity  of 
the  other  term  with  the  middle  to  any  extent  identifies  it  to  the 
same  extent  with  the  former  term,  and  abo  to  that  extent  war- 
rants the  conclusion.     For  example : 

Some  tyrants  deserve  death  ; 

Nero  was  a  tyrant ; 

Therefore,  Nero  deserved  death. 
Here  the  middle  term  "  tyrant  "  is  distributed  in  neither  prem- 
ise, and  it  is  evident  that  the  conclusion  is  erroneously  drawn, 
since  Nero  might  or  might  not  have  been  among  the  "  some 
tyrants  "  of  the  major  premise.  But  if  the  middle  term  had 
been  distributed  in  the  major  premise,  and  it  had  asserted  that 
"  All  tyrants  deserve  death,"  the  conclusion  would  have  been 
impregnable.     Or  in  another  example  ; 


328  APPENDIX. 

Man  is  a  biped  without  feathers ; 

A  plucked  goose  is  a  biped  without  feathers; 

Therefore,  a  plucked  goose  is  a  man. 
The  middle  term  "  biped  without  feathers  "  is  undistributed. 
If  it  were  stated,  "  Every  biped  without  feathers  is  a  man," 
instead  of,  as  in  effect  it  is  affirmed,  that  "  Some  bipeds  with- 
out feathers  are  men,"  the  syllogism  would  have  been  sound  on 
its  face,  and  the  conclusion  would  have  legitimately  followed, 
its  sole  defect  being  the  falsehood  of  the  major  premise.  This 
error  of  the  undistributed  middle  is  the  most  common  of  all  the 
second  class  of  defects,  but  it  misleads  only  when  concealed  in 
the  words  employed  by  the  reasoner.  If  his  act  of  reasoning 
be  expressed  in  syllogistic  form,  his  mind  will  instinctively 
rebel  against  the  conclusion;  although  he  may  not  be  able  to 
point  out  the  defect,  or  designate  it  by  its  proper  name. 

Another  defect  of  this  class  is  caused  by  distributing  in  the 
conclusion  a  term  which  has  not  been  distributed  in  either  of 
the  premises  ;  by  this  means  asserting  in  the  conclusion  a 
universal  identity,  where  only  a  particular  identity  had  been 
affirmed  in  the  premises.  This  fault  is  sometimes  called  illicit 
process.     For  example : 

All  tyrants  are  dead ; 

Cesar  was  not  a  tyrant ; 

Therefore,  Cesar  is  not  dead. 
In  this  syllogism  the  term  "  not  dead  "  is  distributed  in  the 
conclusion,  meaning  "  No  dead  man  is  Cesar."  In  the  major 
premise  it  is  undistributed,  signifying  that  such  men  as  were 
tyrants  are  dead,  but  not  affirming  that  other  men  who  were  not 
tyrants  are  not  also  dead.  To  warrant  the  conclusion  the 
major  premise  should  have  been,  "  All  dead  men  were  tyrants," 
or,  "  No  men  except  tyrants  are  dead,"  which  would  have  been 
manifestly  untrue.     Again: 

All  tyrants  deserve  death  ; 

Roman  emperors  were  tyrants  ; 

Therefore,  all  Roman  emperors  deserve  death. 

The  minor  premise,  if  true,  refers  to  some  Roman  emperors 

only,  but  the  conclusion  improperly  distributes  the  term,  and 

renders   the    reasoning   defective.     Illicit   process   is,  like  the 

undistributed   middle,  an  error  which   the   intellect  easily  de- 


COMPENDIUM   OF   LOGIC.  329 

tects,  if  the  syllogism  containing  it  is  written  out  and  carefully 
considered. 

A  third  defect  arises  when  a  conclusion  is  based  upon  two 
negative  premises.  In  such  a  case,  the  major  and  the  minor 
terms  are  both  affirmed  not  to  agree  with  the  middle  term.  It 
does  not  follow  from  this,  however,  that  they  do  or  do  not  agree 
with  one  another.     For  example  : 

No  British  sovereigns  were  tyrants; 
Cesar  was  not  a  British  sovereign; 
Therefore,  Cesar  was  a  tyrant ;  or 
Therefore,  Cesar  was  not  a  tyrant. 
One  of  these  conclusions  follows  from  the  premises  as  well 
as  the  other,  but  neither  is  justified  by  the  premises. 

A  fourth  defect  consists  in  drawing  a  negative  conclusion 
from  two  affirmative  premises  Such  a  conclusion  cannot  be 
correct,  for  where  the  premises  affirm  the  agreement  of  the 
major  and  minor  terms  with  the  middle  term,  the  only  possible 
result  is  the  affirmation  of  agreement  between  the  major  and 
the  minor.  But  the  major  or  minor  premise  of  a  syllogism  may 
be  negative  in  substance,  though  stated  in  affirmative  words, 
and  a  negative  conclusion  may  then  be  properly  drawn  from 
them.     For  example : 

Patriots  alone  deserve  well  of  their  country; 
Catiline  was  a  traitor ; 

Therefore,  Catiline  did  not  deserve  well  of  his  country. 
Here  the  major  and  minor  premises  are  negative  with  respect 
to  each  other,  though  affirmative  in  form.  "  Traitor"  is  equiv- 
alent to  "  not  a  patriot."  "  Patriots  alone  "  is  equivalent  to  "  No 
traitors."  Where  the  apparently  affirmative  terms  thus  express 
negative  ideas,  a  negative  conclusion  may  be  supported,  but  not 
otherwise. 

A  fifth  defect   occurs    when  both   premises   are   particular. 
From  such  premises  no  conclusion  follows.      For  example : 
Some  Roman  emperors  were  public  benefactors  ; 
Some  tyrants  were  Roman  emperors ; 
Therefore,  some  tyrants  were  public  benefactors. 
Here  there  is  no  comparison  of  the  major  and  minor  terms 
with  the  same  middle  term,  for  the  Roman  emperors  who  were 
tyrants  are  not  asserted  to  be  the  same  Roman  emperors  who 


330  APPENDIX. 

were  public  benefactors.  In  most  instances  this  defect  em- 
braces that  of  an  undistributed  middle  term. 

These  various  defects  in  an  act  of  reasoning  are  called  soph- 
isms, or  fallacies,  and  are  to  be  met  with  in  every  species  of 
composition  in  which  questions  are  investigated  and  conclusions 
are  apparently  attained.  The  modern  methods  of  discussion, 
which  discard  the  formal  definitions  and  divisions  of  the  scho- 
lastic writers,  together  with  the  copiousness  of  the  English  lan- 
guage and  its  abundance  of  equivocal  and  synonymous  phrases, 
tend  to  render  our  discourse  inexact,  and  to  produce  those  falla- 
cies of  expression  which  soon  become  fallacies  in  thought  itself. 
Hence  it  is  not  surprising  that  our  dissertations  in  theology  and 
law  and  science,  the  sermons  of  our  preachers,  and  even  the 
opinions  of  our  highest  courts,  are  sown  with  them,  and  that 
no  student  of  our  day  is  warranted  in  accepting  any  new  con- 
clusion, until  he  has  submitted  it  to  logical  analysis  and  satis- 
fied himself  that  its  premises  are  individually  and  collectively 
true,  and  that  it  is  legitimately  derived  from  them. 

All  correct  syllogisms  are  reducible  to  four  forms  ;  two  fur- 
nishing affirmative  conclusions,  and  two  furnishing  negative 
conclusions.  In  all  these  the  major  premise  distributes  the 
middle  term.  In  the  first  and  second  the  minor  term  is  distrib- 
uted, in  the  third  and  fourth  it  is  taken  as  to  part  of  its  content 
only.     For  example : 

1 .  All  tyrants  deserve  death  ; 

All  Roman  emperors  were  tyrants  ; 
Therefore,  all  Roman  emperors  deserved  death. 

2.  No  tyrants  are  public  benefactors  ; 
All  Roman  emperors  were  tyrants  ; 

Therefore,  no  Roman  emperors  were  public  benefactors. 

3.  All  tyrants  deserve  death  ; 

Some  Roman  emperors  were  tyrants  ; 

Therefore,  some  Roman  emperors  deserved  death. 

4.  No  tyrants  are  public  benefactors ; 
Some  Roman  emperors  were  tyrants  ; 

Therefore,  some  Roman  emperors  were  not  public  bene- 
factors. 
Every  reasoning  process  is  capable  of  expression  in  one  of 
these  syllogisms,  and  when  so   expressed   is  also  capable  of 


COMPENDIUM    OF   LOGIC.  331 

investigation  by  the  application  of  the  tests  which  disclose 
whether  or  not  it  is  tainted  with  any  of  the  fallacies  hereto- 
fore described. 

In  actual  discourse  different  syllogisms  are  frequently  com- 
bined, and  their  propositions  are  then  usually  expressed  in  con- 
densed or  cumulative  forms.  Of  such  combinations  there  are 
two  :  the  sorites  and  the  dilemma.  In  the  sorites  several  con- 
clusions of  unexpressed  premises  are  strung  together  in  a  series, 
in  which  each  conclusion  is  used  as  the  premise  of  the  next,  and 
the  final  conclusion  is  predicated  of  the  original  subject.  For 
example : 

He  who  will  not  work  will  have  no  money ; 

He  who  has  no  money  will  have  no  food; 

He  who  has  no  food  will  starve; 

He  who  starves  will  die ; 

Therefore,  he  who  will  not  work  will  die. 
In  the  dilemma  the  argument  is  stated  as  two  contrary  sup- 
positions, one  of  which    must   be   true,  while  the  conclusion 
follows  from  either.     For  example  : 

He  who  says  he  is  a  liar,  when  he  says  it  either  does  or 
does  not  tell  the  truth ; 

If  he  tells  the  truth,  he  is  a  liar ; 

If  he  does  not  tell  the  truth,  he  is  a  liar ; 

Therefore,  in  either  case,  he  is  a  liar. 
Such  an  argument  is  defective  unless  the  two  divisions  of  the 
dilemma  cover  every  possible  aspect  of  the  matter  asserted,  and 
unless  the  intermediate  conclusion  is  inevitable.  In  the  above 
example,  if  a  man  could  make  a  statement  in  which  he  neither 
lied  nor  told  the  truth,  or  if  either  the  second  or  third  proposi- 
tion was  doubtful,  the  argument  would  fail.  Every  dilemma  is 
reducible  to  two  or  more  syllogisms. 

In  conducting  his  own  reasoning  processes,  and  in  analyzing 
those  of  others,  the  scholar  encounters  his  greatest  difficulty  in 
the  selection  or  discovery  of  the  appropriate  middle  term.  The 
conclusion  which  he  wishes  to  attack  or  defend  supplies  him  with 
the  major  and  the  minor  terms.  The  middle  term  in  the  first 
and  third  forms  of  the  syllogism  is  identified  with  both  the  major 
and  the  minor  terms.  In  the  second  and  fourth,  it  is  affirmed  of 
the  minor  term  and  denied  of  the  major.     In  each  conclusion 


332  APPENDIX. 

the  minor  term  is  the  subject  of  the  proposition,  and  the  major 
term  is  the  predicate.  The  discovery  of  a  middle  term  for  the 
first  and  third  forms  of  the  syllogism  thus  requires  that  some 
fact  or  law  should  exist  which  can,  at  the  same  time  and  in  the 
same  sense,  be  the  predicate  of  the  minor  term  and  the  subject 
of  the  major  term.  For  example,  a  middle  term  is  sought  for 
the  conclusion,  "  All  Roman  emperors  deserved  death."  "  All 
Roman  emperors"  is  the  minor  term,  "deserved  death"  is  the 
major  term.  Now  what  can  be  predicated  of  all  Roman  em- 
perors and  at  the  same  time  can  be  said  to  deserve  death  ?  We 
have  selected  "  tyrants,"  but  any  other  term  having  the  same 
requisites  would  have  been  equally  suitable ;  as,  for  instance, 
"  murderers,"  or  "  traitors,"  etc.  In  the  second  and  fourth  forms 
of  the  syllogism  the  term  selected  for  the  middle  term  must 
be  predicable  of  the  minor  term,  but  must  not  be  the  subject  of 
the  major.  For  example,  the  conclusion  sought  is,  "  No  Roman 
emperors  were  public  benefactors."  The  term  "tyrants"  can 
be  predicated  of  "  Roman  emperors,"  but  cannot  be  the  subject 
of  the  predicate  "  were  public  benefactors,"  and  to  affirm  it  of 
the  former  is  therefore  to  deny  to  them  the  character  of  the  lat- 
ter. The  discovery  of  the  middle  term  thus  depends  upon  the 
knowledge  of  the  reasoner  concerning  his  subject  matter ;  and 
the  soundness  of  his  argument  is  measured,  other  things  being 
equal,  by  the  fitness  of  his  middle  term  for  its  purpose,  and  the 
accuracy  with  which  it  is  defined. 

The  foregoing  rules  for  securing  correctness  and  avoiding 
fallacies  in  reasoning  have  been  summed  up  in  the  following 
manner  :  — 

1.  The  syllogism  must  contain,  both  in  words  and  meaning, 

three  and  only  three  terms. 

2.  No  term  must  possess  in  the  conclusion  a  wider  application 

than  it  possesses  in  the  premises. 

3.  The  middle  term  must  never  appear  in  the  conclusion. 

4.  The  middle  term  must  be  distributed  or  asserted  in  its 

widest  application  in  at  least  one  of  the  premises. 

5.  From  two  affirmative  premises  no  negative  conclusion  can 

be  drawn. 

6.  From  two  negative  premises  no  conclusion  whatever  can 

be  drawn. 


COMPENDIUM   OF   LOGIC.  333 

7.  From   two  particular    premises    no    conclusion    can    be 

drawn. 

8.  The  conclusion  is  never  more  certain  than  the  least  certain 

premise. 
Practice  in  reducing  the  arguments  found  in  briefs,  decisions, 
and  other  discussions  to  syllogistic  forms,  and  in  testing  them 
by  these  rules  as  explained  in  the  foregoing  pages,  will  soon 
familiarize  the  student  with  accurate  logical  methods,  and  en- 
able him  to  guard  against  the  errors  which  he  thus  learns  to 
detect  in  the  reasonings  of  others. 


334  APPENDIX. 


APPENDIX   II. 


CHARACTERISTICS   OF   ANCIENT   ORATORY. 

The  study  of  the  orations  of  antiquity,  particularly  those  of 
Cicero  and  Demosthenes,  will  never  cease  to  be  an  important 
part  of  the  education  of  the  orators  of  every  future  age.  To 
the  advocate  their  frequent  critical  examination  is  extremely 
valuable  on  account  of  three  characteristics  in  which  they  all 
excel ;  viz.  their  brevity,  their  careful  selection  of  ideas,  and 
their  elegance  of  style. 

The  brevity  of  these  orations  places  them  in  striking  contrast 
to  the  majority  of  those  which  now  proceed  from  the  platform, 
the  pulpit,  and  the  forum.  The  Select  Orations  of  Cicero,  as 
they  are  called,  number  twenty-seven.  But  four  of  these 
occupy  over  an  hour  in  their  delivery,  none  more  than  one 
hour  and  a  half.  Eight  consume  from  a  half-hour  to  an  hour; 
seventeen,  a  half-hour  or  less.  Of  the  public  orations  of 
Demosthenes,  not  including  that  on  the  Crown,  there  remain 
sixteen,  none  of  which  exceeded  three  quarters  of  an  hour, 
thirteen  requiring  a  half-hour  or  less,  and  two  but  fifteen  min- 
utes. A  comparison  in  this  respect  between  these  and  the 
interminable  discourses  inflicted  upon  their  audiences  by  mod- 
ern preachers,  advocates,  and  statesmen,  may  go  far  toward 
explaining  the  difference  in  the  degree  of  influence  exerted  by 
them  on  the  minds  and  hearts  of  those  to  whom  they  were 
addressed. 

A  careful  selection  of  ideas,  and  the  consequent  rejection  of 
every  superfluous  thought,  is  of  course  essential  to  the  attain- 
ment of  brevity.  Upon  this  point  also  the  diversity  between 
ancient  and  modern  oratory  is  very  marked.  Our  orators,  of 
whatever  species,  seem  to  aim  at  an  exhaustive  discussion  of 
their  subject,  as  if  it  were  the  purpose  of  oratory  to  furnish 


CHARACTERISTICS   OF   ANCIENT   ORATORY.       335 

to  the  auditor  every  accessible  item  of  information.  Not  so 
with  the  great  orators  of  old.  The  student  of  their  epochs 
and  surroundings  easily  discerns  multitudes  of  ideas  which 
might  have  entered  into  their  orations,  had  they  seen  fit  to 
employ  them,  and  at  the  same  time  he  is  impressed  with 
the  wonderful  sagacity  displayed  in  their  adoption  of  those,  and 
those  only,  which  were  calculated  to  make  the  most  intense 
impression  on  their  hearers.  In  the  oration  of  Demosthenes 
on  the  Chersonese,  regarded  by  many  scholars  as  the  best  of 
his  public  efforts,  the  considerations  urged  upon  his  audience 
are  singularly  few  and  simple.  Between  Athens  and  Philip  a 
nominal  peace  then  prevailed.  An  Athenian  army  on  the  bor- 
ders of  Thrace,  commanded  by  Diopithes,  had  become  involved 
in  disputes  with  the  Cardians,  whom  Philip  had  assisted.  Philip 
wrote  to  Athens,  demanding  the  recall  of  the  army,  and  com- 
pliance with  this  demand  was  advocated  by  many  Athenian 
citizens,  either  through  fear  of  Philip  or  through  secret  sympa- 
thy with  his  designs.  Demosthenes  opposed  it,  and  counselled 
the  support  of  Diopithes  with  supplies  and  men,  as  necessary 
for  the  protection  of  Athens  itself.  Numerous  were  the  ideas 
at  his  command,  suggested  by  the  past  and  present  relations  of 
the  contending  parties,  but  of  these  the  oration  contains  only 
the  following :  — 

"Between  Philip  and  Athens  there  must  be  either  peace  or  war. 
Philip  hates  us,  our  country,  and  our  constitution,  which  are  the  only 
barriers  against  his  universal  despotism.  All  his  operations  every- 
where are  directed  ultimately  against  us,  and  he  will  not  permit  us  to 
have  peace.  His  sympathizers  here  assert  that  they  want  peace,  and 
blame  us  for  preferring  war  ;  but  they  desire  only  delay  in  order  that 
Philip  may,  as  he  has  always  done,  derive  some  advantage  from  our 
inaction.  You,  Athenians,  seem  willing  to  believe  anything  rather 
than  that  Philip  means  war,  and  your  supineness  threatens  to  be  your 
destruction.  Think  of  your  lost  opportunities  and  his  aggressions, 
and  remember  that  this  is  to  us  a  struggle  for  existence,  as  the  fate  of 
other  Greek  states  clearly  shows.  Whoever  is  resisting  Philip  is,  there- 
fore, acting  on  our  behalf  and  for  our  benefit.  Just  now,  the  army  of 
Diopithes  is  all  that  stands  between  Philip  and  ourselves.  Philip  no 
doubt  wants  him  recalled.  But  we  ought  to  strengthen  and  support 
him  ;  and  though  to  do  it  may  cost  much,  it  will  cost  still  more  if  we 
neglect  it.  This  advice  may  not  be  agreeable  for  you  to  follow,  but  I 
prefer  to  counsel  you  to  do  that  which  is  honorable  and  safe." 


336  APPENDIX. 

Another  example  is  the  oration  of  Cicero  on  behalf  of  Liga- 
rius,  whom  Cesar  had  determined  to  condemn  as  an  adherent 
of  Pompey,  but  for  whom  this  renowned  speech  of  Cicero  won 
forgiveness.  The  prosecutors  of  Ligarius,  as  well  as  Cicero 
himself,  had  also  espoused  the  cause  of  Pompey,  but  had  sub- 
mitted to  Cesar  and  been  pardoned.  The  appeal  of  Cicero  for 
Ligarius  consists  almost  entirely  of  the  ideas  suggested  by  this 
fact.     He  says:  — 

"Ligarius  was  guilty  of  the  same  fault  that  we,  his  prosecutors  and 
defenders,  were;  but  we  were  more  guilty  than  he  because  he  was 
drawn  onward  by  circumstances  while  we  acted  from  choice.  It  was 
a  mistake  in  all  of  us,  but  we  were  prompted  by  a  sincere  regard  for 
the  state,  and  on  that  account  you  have  pardoned  us,  and  have  had 
no  reason  to  repent  of  your  kindness.  Your  clemency  toward  us  has 
been  so  great  that  you  cannot  deny  the  same  favor  to  him,  especially 
when  so  many  of  your  best  and  most  faithful  friends  desire  it,  and 
when  his  pardon  will  unite  his  whole  family  to  you  in  the  strongest 
ties  of  allegiance." 

These  examples,  which  might  be  increased  by  similar  analyses 
of  all  the  other  speeches  of  these  orators,  exhibit  the  practical 
application  of  that  rule  of  oratory  which  requires  the  presenta- 
tion of  a  few  indisputable  arguments  that  are  at  once  intelligible 
and  acceptable  to  the  hearers,  and  the  rejection  of  every  thought 
which  is  obscure,  or  doubtful,  or  superfluous. 

To  compose  an  oration  of  these  simple  materials,  and  to  urge 
these  thoughts  again  and  again  upon  their  auditors  without  seem- 
ing repetition,  required  the  highest  degree  of  rhetorical  skill. 
To  appreciate  to  its  full  extent  the  excellence  of  style  attained 
by  these  orators,  familiarity  with  the  language  in  which  they 
spoke  is  necessary.  But  even  the  student  who  must  content 
himself  with  good  English  translations  cannot  fail  to  perceive 
what  masters  of  the  art  of  rhetoric  they  had  become,  or  to 
be  convinced  that  what  Cicero  says  of  his  own  constant  culti- 
vation of  that  art  must  have  been  true.  Examples  of  almost 
every  figure  of  thought  or  words  can  be  found  in  his  orations, 
impaired  in  beauty  sometimes  by  transmutation  into  our  Anglo- 
Saxon  tongue,  but  still  manifesting  the  immense  resources  of 
language  for  the  varied  and  effective  expression  of  ideas.  The 
style  of  Demosthenes  is  less  ornate  than  that  of  Cicero,  but  the 


CHARACTERISTICS    OF    ANCIENT   ORATORY.      337 

care  with  which  he  chose  his  words  and  framed  his  sentences 
appears  not  only  in  the  diction  of  his  separate  orations,  but  in 
his  method  of  selecting  the  choicest  phrases  of  one  already 
delivered  and  incorporating  them,  still  further  polished  and 
strengthened,  into  another.  Rarely  ever  can  any  poet  have 
revised  and  pruned  and  harmonized  his  swelling  numbers  with 
more  assiduity  or  more  success  than  did  these  two  orators 
the  words  and  sentences  which  were  to  be  uttered  but  once 
only,  and  that  within  the  compass  of  a  single  hour.  It  is 
perhaps  in  this  respect  more  than  in  any  other  that  modern 
oratory  differs  from  the  ancient.  In  multiplicity  of  ideas,  in 
quantity  of  words,  we  far  exceed  them  ;  an  excess  which,  judged 
by  oratorical  standards,  is  however  no  evidence  of  merit.  But 
in  the  selection  of  intelligible  and  attractive  words,  in  their  col- 
location into  sentences  possessing  clearness,  unity,  harmony, 
and  strength,  and  in  the  construction  and  use  of  rhetorical 
figures,  our  speeches  bear  no  comparison  with  theirs.  This 
inferiority  is  partly  due  to  the  wide  adoption  of  the  habit  of 
extemporaneous  speaking,  and  partly  to  the  haste  and  careless- 
ness with  which  most  of  our  written  orations  are  composed. 
Such  methods  of  preparing,  or  of  not  preparing,  orations  are 
mistakes  into  which  the  orator  is  led  by  his  erroneous  view 
of  the  proper  scope  of  his  oration  and  of  the  time  he  ought 
to  occupy  in  its  delivery.  The  three  faults  of  modern  oratory, 
like  the  three  excellences  of  ancient  oratory,  are  indissolubly 
linked  together.  Prolixity,  diffusiveness  and  complexity  of 
thoughts,  and  a  loose,  rambling,  uncultivated  diction,  proceed 
from  a  lack  of  the  same  diligence,  discernment,  and  discretion 
which  produce  brevity,  simplicity,  and  elegance  of  style.  The 
return  to  either  of  these  excellences  without  a  return  to  the 
others  is,  therefore,  practically  impossible.  When  an  orator 
properly  selects  his  ideas,  putting  aside  all  that  is  not  actually 
useful  for  his  purpose,  his  speech  will  necessarily  be  brief,  and 
in  its  preparation  no  such  haste  will  ordinarily  be  required  as  to 
prevent  his  language  from  expressing  his  ideas  with  an  appro- 
priate perspicuity  and  grace. 

22 


INDEX. 


Thb  References  are  to  Sections. 


ACCENT 354 

ACT,  proposed  in  forensic  oratory  involves  idea  of  duty       76 

voluntary  springs  from  what 15 

ACTION    OF    THINGS,  available  ideas  concerning 109 

ADVOCATE.    (See  Orator.) 

circumstances  conducing  to  success  of 55 

hindering  success  of 56 

conduct  of,  during  his  direct  examination     ....       197-199,209-213 

rendering  evidence  unintelligible J97-I99 

toward  good  witnesses        210 

poor  witnesses       211 

court 212 

when  surprised  by  bad  evidence 211,262 

while  his  own  witnesses  are  under  cross-examination    258,  259 
during  direct  examination  of  adverse  witnesses       .       217-220 

interference  with  witness 221 

cross-examining,  manner  of       257 

must  understand  witness  and  his  effect  on  jury 216 

qualities  of 256 

treatment  of  credible  witness 227 

difficulties  of,  with  strange  witnesses 188 

faults  of  pugnacious 218 

ideas  available  to •     .     .     .     .         92-119 

interference  during  direct  examination  of  adverse  witnesses      .     .     .     221 

must  address  only  noble  impulses 7 

devote  his  energies  to  creating  present  impressions     ....    264 

discover  ultimate  issue 81 

observe  oratorical  rules  in  presenting  evidence        199 

support  ultimate  issue  by  arguments 86 

not  attempt  to  create  a  case 156 

mislead  jury  by  improper  impulses      ....       89 
not  promote  unjust  cause 89 


340  INDEX. 

ADVOCATE  —  continued. 

requires  cultivation  in  oratory 3 

universal  knowledge 92 

speaks  through  his  witnesses 164 

treatment  of  adverse  witnesses  by 219 

ALLEGORY 294 

ALLUSION,  as  a  rhetorical  figure 292. 

ALTERCATION 265-270 

ANALOGOUS   CASES,  inferences  from 151 

ANTITHESIS 292 

APOSTROPHE 292 

APPEAL 63-66,  337-339 

difficulties  of 64 

oratorical  and  rhetorical  limitations  of 65,  66 

purpose  and  scope  of 63 

to  emotions  in  peroration 337—339 

when  to  be  attempted 337 

method  of 338 

variations  in  form  of 339 

APPREHENSION  by  witness  defective 229-234 

ARGUMENT  relates  to  facts  or  law  or  both 60-62 

relating  to  facts 61 

law 62 

ARGUMENTS,  arrangement  of 327 

construction  of 325 

discovery  of 323 

in  forensic  oratory 324 

irrefutable 329 

must  support  ultimate  issue 79,  86 

refutable 330 

selection  of 326 

useful  only  when  communicable  to  hearers      ....      87 

weight  of 326 

ARGUMENTUM  AD  HOMINEM 26 

ARMS  AND  HANDS,  gestures  by 363-371 

ARRANGEMENT,  importance  of 69 

of  ideas 163 

parts  of  oration 3°5-34° 

importance  of 305 

method  of 306 

ARTICULATION,  qualities  and  defects 353 

ATTENTION,  defects  of,  in  witnesses 231-234 

AUDIENCE,  difficulty  arising  from  varied  character  of 10 

want  of  knowledge  of       ....        9 
AUTHORITY,  arguments  from 28 


INDEX.  34I 

BODY,  motions  of,  while  speaking 362 

positions  of,  while  speaking 358-360,  362 

defects  in 360,  362 

BREVITY,  consists  in  what 319 


CASE,  preparation  of  a 72-163 

CASES  DECIDED,  authority  of 146,150,151 

comparative  value  of 150 

CATEGORIES,  the  Ten       102-112 

CAUSATION,  as  an  attribute  of  things 109 

CAUSE,  law  of 93,114-119 

matters  outside,  available  ideas  concerning 92 

persons  in,  available  ideas  concerning 94-100 

things  in,  available  ideas  concerning 101-113 

turns  on  the  ultimate  issue 77—79 

(See  Issue.) 

CHARACTER  of  orator  must  be  good 40 

persons,  available  ideas  concerning     .....       95 

witnesses  attacked  on  cross-examination      ....     253 

CIRCUMSTANCES  OF  PERSONS,  available  ideas  concerning     .     .       95 

CIVIL  CAUSES,  issue  in,  shown  by  pleadings 84 

CLASSIFICATION  OF  IDEAS 156-159 

CLEARNESS  OF  SENTENCES 284 

CLIENT,  examination  of  in  private  by  advocate 123-127 

reduced  to  writing 127 

unreliability  of  statements  of 123 

COMMON  SENSE,  necessary  to  orator       44 

COMMUNICATION,  as  a  rhetorical  figure 292 

COMPARISON,  as  a  rhetorical  figure 292 

COMPREHENSION  OF  WORDS 273 

CONCESSION,  as  a  rhetorical  figure        292 

CONJUNCTIONS,  rhetorical  use  of 296 

CONNECTION"  of  persons  with  the  cause,  available  ideas  concerning    .       99 

CONSTITUTIONS,  as  authority 144 

CONTRADICTION   OF  WITNESSES 252 

CONVINCING,  process  of,  in  oratory 18-29 

COUNSEL.     See  Advocate. 

CORRECTION,  as  a  rhetorical  figure 292 

COUNTENANCE,  movements  of,  while  speaking 361 

COURT,  acts  on  probabilities 137 

conduct  of  advocate  toward 212 

does  not  aim  to  do  general  justice 89 

governed  by  considerations  of  public  policy 152 

importance  of  favor  of 212 

(See  Judge.) 


342  INDEX. 

CRIMES  of  higher  classes 97 

of  lower  classes        97 

CRIMINAL  CASES,  issue  not  shown  by  pleadings 85 

CROSS-EXAMINATION 214-257 

duty  of  adverse  advocate  during 258,  259 

preparation  of  witnesses  for 183 

(See  Witnesses,  Cross-examination  of.) 

CROSS-EXAMINER,  manner  of 257 

qualifications  of 256 


DECISIONS  in  analogous  cases,  authority  of 151 

in  other  States,  authority  of 150 

DEFINITION,  a  species  of  demonstration 20 

impossible  unless  orator  understands  subject    ....      21 

must  precede  demonstration 19 

DEFINITIONS  OF  LAW,  authority  of 145 

inferences  from 149 

DELIVERY 70,  350-372 

divisions  of 350 

importance  of     ....     , 70, 350 

propriety  in 372 

purposes  of 350 

DEMONSTRATION 22-29 

forms  of 26-28 

argumentum  ad  hominem 26 

authority 28 

examples 27 

impossible  without  preceding  definition 19 

must  be  brief 29 

simple 23 

such  as  hearers  themselves  use 24 

suitable  to  oratorical  methods 26 

not  philosophical  or  mathematical 25 

DETECTIVE,  system  of 113 

DIALOGISM,  as  a  rhetorical  figure 292 

DIMINUTION,  as  a  rhetorical  figure 292 

DIRECT  EXAMINATION  OF  WITNESSES 190-213 

(See  Witnesses,  Direct  Examination.) 

DISSIMULATION,  as  a  rhetorical  figure 292 

DUBITATION,  as  a  rhetorical  figure 292 

DUTY,  idea  of,  the  leading  idea  in  forensic  oratory 76,  89 

always  to  be  derived  from  issue 77 

tendency  of  human  nature  to 13 

toward  perfection  impels  to     .     .' 13 

universal  ideas  of,  excite  universal  emotions 14 


index.  343 

EARNESTNESS,  necessary  to  orator 43 

ELLIPSIS 295 

not  suitable  for  oratory 284 

EMOTIONS,  appeal  to,  in  peroration 337—339 

classes  of 14 

energy  of,  dependent  on  energy  of  ideas 4 

excited  by  ideas 3 

by  universal  ideas  of  duty,  virtue,  or  happiness     .       14 

move  the  will        2 

oratory  employs  what .     .     .        7 

only  universal 11 

universal,  every  voluntary  act  springs  from 15 

EMPHASIS 354 

EPIPHONEME 292 

EQUIVOCAL  WORDS       275 

EVIDENCE,  admissibility  of,  available  ideas  concerning 115 

convincing  and  persuasive       201-213 

expert 191 

intelligible 190-200 

how  rendered  unintelligible 191-199 

presented  chronologically 200 

objections  to,  how  urged  and  met 213 

opening,  importance  of 202 

order  and  mode  of  introducing 200-204 

production  of,  in  court 116,  164-167 

available  ideas  concerning 116 

complete  oratorical  act 166 

fundamental  rule  of    ...  ' 264 

not  a  mere  search  for  information 165 

value  of,  how  far  dependent  on  advocate    .       197-199,  209-213 

witness 205 

EXAGGERATION,  as  a  rhetorical  figure 292 

of  facts,  modes  of 297 

EXAMINATION,  RE-DIRECT 258-264 

(See  Witnesses,  Re-direct  examination.) 

EXAMPLES,  arguments  from        27 

EXCLAMATION,  as  a  rhetorical  figure       292 

EXISTENCE  OF  THINGS,  available  ideas  concerning 103 

EXORDIUM 307-312 

delivery  of 312 

necessity  of 307 

preparation  of 311 

purpose  of 308 

style  of 312 

subjects  of 309 

selection  of , 310 


344  INDEX. 

EXPERIMENTS  in  preparing  case        130 

EXPERT  WITNESSES,  examination  of 191 

EXPRESSION 271-304 

divisions  of 271 

importance 68 

scope 271 

EXPRESSIONS  OF  WITNESSES,  faults  of 224,  238,  239 

EXTEMPORANEOUS  ORATIONS,  mode  of  acquiring  facility  in   344-349 

EXTENSION  OF  WORDS 274 

EXTENUATION  OF  FACTS,  modes  of 297 


FACE,  motions  of,  while  speaking 361 

FACTS,  arguments  on  questions  of 61 

investigation  of 120-141 

(See  Ideas,  Collection  of.) 

FIGURES,  oratorical 296 

rhetorical 290-298 

acquisition  of 298 

classes  of 291 

of  thought 292 

of  words 293-296 

in  forensic  oratory 297 

utility  of 36,  290 

FORENSIC  ORATORY 53-66 

argument  in 60-62 

appeal  in 63-66 

circumstances  conducing  to  success  in 55 

hindering  success  in 56 

discovery  of  arguments  in •     .     .     324 

divisions  of 57 

judicial  form  of  political  oratory 53 

leading  ideas  relate  to  duty 53,  76-89 

derived  from  the  issue 77 

present  condition  of Introd.,  p.  2 

rhetorical  figures  employed  in 297 

seeks  favorable  decision  of  a  cause 54 

statement  in       58,  59 

style  of 303 

(See  Oratory.) 


GESTURE 357-371 

body,  positions  and  motions  of 358-360,  362 

face,  eyes,  etc 361 


INDEX.  345 

GESTURE—  con  f  hi  ncd. 

hands  and  arms Z^TrTsT1 

alternate 37° 

continuous       37° 

course  of 3°^> 

double 367, 368 

imitative 368>  369 

index-finger 3^5 

position  of  body,  fingers,  etc.  in 366 

single 363~366 

right  hand 364 

left  hand 365 

head  and  body 3^2 

importance  of  training  in 371 

nature  and  divisions  of 357 

GRADATION,  as  a  rhetorical  figure       292 

HABILIMENT  OF  THINGS,  available  ideas  concerning      ....  112 

HANDS  AND  ARMS,  gestures  of 363-371 

HAPPINESS,  human  nature  tends  to 13 

tendency  toward  perfection  impels  to 13 

universal  ideas  of,  excite  universal  emotions      ....  14 

HARMONY  OF  SENTENCES 287 

HEAD,  carriage  of,  while  speaking 360,362 

motions  of,  while  speaking 362 

HEARERS,  arguments  must  be  communicable  to 87 

effect  of  preconceived  ideas  on       8 

ideas  must  be  acceptable  to 91 

orator  addresses  the  average  of  the 34 

HUMAN  NATURE,  tendency  of,  toward  perfection 12 

HYPERBATON 295 

HYPERBOLE 292 

HYPOTYPOSIS 292 

IDEA  of  a  duty  to  be  performed 76 

leading  idea  in  forensic  oratory 76,  89 

sought  and  found  in  the  issue 77 

IDEAS,  arrangement  of 163 

available,  classes  of 92,  155 

matters  outside  the  cause 92 

within  the  cause 93 

persons  in  the  cause 94-100 

character  and  circumstances       ....       95 

connection  with  the  cause 99 

interest  in  the  cause 98 


346  INDEX. 

IDEAS  —  continued. 

available,  —  persons  in  the  cause, 

political  relations    « 96 

racial  relations 96 

social  relations 97 

things  in  the  cause 101-113 

attributes       102 

action 109 

existence 103 

habiliment        112 

place 107 

passion no 

posture in 

quality 104 

quantity 105 

relation 106 

time 108 

law  of  the  cause 93,114-119 

rules  of  evidence 114 

admissibility 115 

application  to  issue 118 

presumptions 117 

production  in  court 116 

rules  governing  merits  of  case  .     .     .     .     119 

classification  of 156-158 

enables  advocate  to  advise  client .156 

foresee  adverse  claims 158 

exhibits  value  of  each  idea 157 

collection  of,  as  to  matters  of  fact 120-141 

matters  outside  the  cause 120 

within  the  cause 121 

by  direct  investigation 122-133 

from  adverse  parties  and  witnesses  .     .     .     133 

client       123-127 

experiments 130 

objects  and  places 129 

private  writings 131 

public  records 132 

witnesses 128 

by  inferences 135-14 1 

necessary,  probable,  possible 136 

possible,  value  of 138, 139 

probable,  value  of 137,  139 

reduced  to  syllogism 14c 

collection  of,  at  to  matters  of  law 62,142-153 

by  direct  investigation 143-147 


index.  347 

IDEAS,  collection  of  on  matters  of  law  —  continued. 
by  direct  investigation, 

of  definitions  and  maxims 145 

precedents 146 

rules  of  practice 147 

statutes 144 

by  inferences 148-153 

from  considerations  of  public  policy        .     .     .     .     152 

decisions  in  analogous  cases 151 

other  jurisdictions 150 

difficulties  in  collecting 121 

selecting 9,  10 

energy  of,  depends  on  what 5 

excite  emotions        3 

selection  of 154,  159-162 

with  reference  to  hearers 160,  161 

medium  of  communication 162 

serviceable  in  forensic  oratory 76-91 

contained  in  the  issue 76,  77,  88-90 

serviceable  in  general  oratory 7 

acceptable  to  hearers 91 

arouse  impulse  toward  desired  act 73 

noble  impulses 7 

suited  to  hearers 8,  9,  74 

occasion 74 

universal 11 

spring  from  what 12 

unavailable,  rejection  of 155 

universal,  voluntary  acts  originate  in 15 

value  affected  by  medium  of  communication 162 

IMPEACHMENT  OF  WITNESSES       254 

IMPRECATION,  as  a  rhetorical  figure 292 

IMPRESSION,  importance  of  first 202 

INFERENCES,  classes  of 135 

of  fact 135-141 

of  law 148-153 

(See  Ideas,  Collection  of.) 

stated  by  witnesses  as  facts 225 

INFLECTIONS 354 

INFORMATION,  universal,  necessary  to  orator 46 

INTELLIGIBILITY  of  sentences 283-285 

words 272 

INTENSITY  as  an  attribute  of  things 105 

INTEREST  of  persons  in  the  cause,  available  ideas  concerning     ...       98 

INTERROGATION,  as  a  rhetorical  figure 292 

INVENTION 67,  72-75 

defined 67, 72 


348  INDEX. 

INVENTION  —continued. 

ideas  resulting  from,  must  arouse  impulses 73 

be  suited  to  hearers 74 

its  integral  parts 75 

INVESTIGATION  of  facts ...       120-141 

of  law 142-153 

(See  Ideas,  Collection   of.) 

IRONY 292 

ISSUES  in  the  cause  present  the  available  ideas 76,  77,  88-90 

idea  of  duty 77 

happiness 88 

virtue 88 

primary  and  subordinate 78,  79 

ultimate,  in  civil  cases       84 

criminal  cases 85 

must  be  ascertained 80,  81 

difficulties 82 

for  affirmative       83 

negative 83 

of  fact,  proof  and  refutation  in         322-3^3 

law,  proof  and  refutation  in 334 

JUDGES.    (See  Court,  Hearers,  Audience.) 

conduct  of,  toward  advocate 212 

ideas  selected  with  reference  to 160,  161 

natural  tendencies  of 55 

JURY.     (See  Hearers,  Audience.) 

ideas  selected  with  reference  to 160,  161 

actual  knowledge  of,  concerning  incidents  of  trial 264 

movement  of  minds  of,  during  trial 264 

natural  tendencies  of 55 

supervision  of,  by  court 1 1 8 

usually  inclined  to  follow  opinion  of  judge 212 

KNOWLEDGE  of  human  nature  necessary  to  orator 42 

LANGUAGE,  use  of,  how  acquired 277 

LAW,  arguments  on  questions  of 62 

direct  investigation  of 143-147 

statutes       144 

definitions  and  maxims       145 

precedents 146 

rules  of  practice 147 

inferences  of 148-153 

sources,  forms,  and  tests  of  value  of 148 


index.  349 

LAW,  inferences  of  —  continued. 

from  settled  principles  of  law 149 

decisions  in  other  jurisdictions 150 

analogous  cases 151 

considerations  of  public  policy 152 

correctly  drawn  by  advocate  and  court  are  identical      ....  153 

proof  and  refutation  on  questions  of        334 

questions  of  law  investigated 142-153 

LAWYER.     See  Advocate. 

LIMBS,  carriage  of,  while  speaking 360 

LOGICAL  SKILL,  necessary  to  orator 45 

LYING    WITNESSES,  cross-examination  of 240-251 

{See  Witnesses,  Cross-examination  of.) 


MANNER,  pleasing,  necessary  to  orator 47~5i 

how  cultivated 51 

MAXIMS,  direct  authority  of 145 

inferences  from 149 

MEDIUM  of  communication  affects  value  of  ideas 162 

MEMORIZED   ORATIONS 343 

MEMORY",  excellences  and  defects  of 235  -237 

METAPHORS 293 

METONYMY" 294 

MISTAKES  of  fact  by  witnesses 226 

MODESTY"  of  manner  necessary  to  orator 49 

MONOTONY",  avoidance  of 287 

MOTIVES  of  witnesses  to  lie,  detection  of 244-249 

NUMBER,  as  an  attribute  of  things 105 

OBITER   DICTA,  authority  of 146 

OBJECTIONS  to  evidence,  how  urged  or  met 213 

OBJECTS, examination  of,  in  preparing  case 129 

OBSECRATION,  as  a  rhetorical  figure 292 

OCCASION,  style  appropriate  to 302 

OPTATION,  as  a  rhetorical  figure 292 

ORATION,  arrangement  of  parts  of 3°5-34° 

extemporaneous 344-349 

mode  of  acquiring  facility  in 344-349 

memorizing  of 343 

persuasion  the  object  of 31 

preparation  of 341-3.49 

order  of 341 

writing  of 342 


350  INDEX. 

ORATOR,  limitations  of  the  natural ^8 

trained 38 

must  adapt  oration  to  movement  of  hearer's  mind      .     .     35,  36 
believe  what  he  asserts  and  feel  what  he  portrays  .     .      37 

identify  himself  with  his  hearers 33,  34 

qualifications  of 38-52 

acquired  by  discipline 39 

common  sense 44 

earnestness 43 

extraordinary 38 

good  character 40 

reputation 41 

knowledge  of  human  nature 42 

logical  skill 45 

manner  friendly  to  hearers 50 

modest 49 

pleasing 47 

showing  good  character   ........      48 

cultivated  by  cultivating  character       ....       51 

skill  in  speaking 52 

universal  information 46 

ORATORS,  not  when  bad  men 41 

ORATORY,  art  of 18-37 

consists  in  convincing  and  persuading 18 

condition  of  at  present Introd.,  p.  2 

cultivation  necessary  to  advocates    ....     Introd.,  p.  3 

decline  of,  its  causes Introd.,  p.  1 

deliberative 17 

demonstrative 17 

difficulties  in,  from  varied  character  of  hearers     ....       10 
want  of  knowledge  of  hearers      ...        9 

divisions  of 17,  71 

employs  only  universal  ideas  and  emotions 11 

field  of 11-17 

forensic,  discovery  of  arguments  in 324 

object  and  divisions  of 53~66 

(See  Forensic  Oratory.) 

ideas  employed  in 7-10 

(See  Ideas,  Available.) 

judicial 17 

limitations  of 7-10 

moves  the  will 6 

nature  of 1-6 

not  philosophy  or  poetry .         1 

practical 67-71 

purpose  of 1-6 


INDEX.  351 

ORATORY  -  continued. 

resources  of Introd.,  p.  4 

style  in 299-304 

theory  and  practice  of 1-71 

voluntary  acts  elicited  by 16 

political 16 

religious 16 


PARADOX 292 

PARTITION 321 

PASSION  OF  THINGS,  available  ideas  concerning no 

PAUSES 354 

PERFECTION,  human  nature  tends  to 12 

PERIODS,  construction  of 288 

PERJURERS,  detection  of 240-252 

PERIPHRASIS 292 

PERMISSION,  as  a  rhetorical  figure 292 

PERORATION 335-340 

character,  forms,  and  purposes  of 335 

PERSONS,  available  ideas  concerning 94-100 

(See  Ideas,  Collection  of.) 

PERSUASION,  process  of,  in  oratory 3°-37 

awakens  attention,  excites  interest,  compels  decision    .      32 

involves  entire  oration 31 

necessity  of 30 

requires  orator  to  adapt  oration  to  movement  of  hearer's 

mind 35,  36 

feel  what  he  expresses     .....      37 
identify  himself  with  hearers     .     .     33,  34 

PLACE  OF  THINGS,  available  ideas  concerning ,     .     107 

PLACES,  examination  of,  in  preparing  case 129 

PLEONASM 295 

POSITIONS  of  body  while  speaking 358-360,362 

POSTPONMEXT,  as  a  rhetorical  figure 292 

POSTURE  OF  THINGS,  available  ideas  concerning in 

PRACTICE  of  courts,  authority  of  rules  of 147 

PRACTICAL   ORATORY 67-71 

(See  Oratory.) 

PRECEDENTS,  defined 146 

direct  authority  of 146 

inferences  from    , 149 

scope  of 146 

PREPARATION  of  an  oration 341-349 

PRESUMPTIONS  of  fact,  available  ideas  concerning 117 

of  law,  available  ideas  concerning 117 


352  INDEX. 

PRETER1TI0N,  as  a  rhetorical  figure 292 


PROLEPSIS 


292 


PRONUNCIATION,  qualities  and  defects  of 354 

PROOF 322-327 

PROOF   AND   REFUTATION 322-334 

in  issues  of  fact 322-333 

law 334 

order  of 332 

style  of 333 

PROSOPOPCEIA 292 

PUBLIC   POLICY,  inferences  of  law  from 152 


QUALIFICATIONS   of  orator 38-52 

(See  Orator,  Qualifications  of.) 

of  witnesses 168-177 

(See  Witnesses,  Qualifications  of.) 
QUALITIES   OF    THINGS,    available  ideas  concerning      ....     104 
QUANTITY   OF   THINGS,    available  ideas  concerning      ....     105 


RECORDS    PUBLIC,  examination  of,  in  preparing  case 132 

RE-DIRECT   EXAMINATION 258-263 

subject  matter  of 260 

(See  Witnesses,  Re-direct  Examination  of.) 

REFUTATION 328-3-51 

mode  of 331 

(See  Arguments,  Proof  and  Refutation.) 

RELATIONS  of  persons,  available  ideas  concerning 96,  97 

political .       96 

racial 96 

social 97 

of  things,  available  ideas  concerning 106 

REPETITION,  as  a  rhetorial  figure 296 

REPUTATION,  good,  necessary  to  orator 41 

RES  GESTjE 99 

RETICENCE,  as  a  rhetorical  figure 292 

RHETORIC,  figures  of 290-29S 

(See  Figures.) 


SAGACITY,  necessary  to  orator 44 

SELECTION    OF    IDEAS 154,  159-162 

SELF-COMMAND,  manner  of  advocate  should  indicate 360 

SELF-CONSCIOUSNESS,  avoidance  of 348 

SELF-CONTRADICTIONS  by  witnesses  .     .......     .250,251 


index.  353 

SENSATIONS  depend  on  attention  to  object 231-234 

knowledge  of  object 230 

sound  organs  of  sense 229 

surrounding  circumstances 226 

SENTENCES 283-289 

acquisition  of  facility  in  constructing 289 

attractiveness  of 283,  286,  2S7 

clearness  of 284 

harmony  of 287 

intelligibility  of 283-2S5 

strength  of 286 

unity  of 285 

SIMULATION,  as  a  rhetorical  figure .     292 

SKELETON    OF   ORATION  for  use  in  speaking 343,349 

SLOWNESS   OF   SPEAKING,  advantages  of 346 

SOUNDS   OF   WORDS 280 

SPEAKING,  skill  in,  necessary  to  orator 52 

STATEMENT        313-320 

brief .     .     319 

clear 318 

favorable        317 

importance  of 58,  59,313 

pleasing 320 

probable 316 

purpose  of 313 

qualities  of  31- 

subjects  of 31  ,< 

truthful 31- 

STATUTES,  direct  authority  of j** 

inferences  from 1,g 

STRENGTH  OF  SENTENCES 286 

STYLE 299-304 

acquisition  of 20 1 

concise 200 

defined 299 

diffuse 299 

^y 300 

elegant 300 

flowery 300 

moderate        -»0I 

neat 300 

plain 300 

propriety 302 

in  forensic  oratory 65f  303 

simple 301 


sublime 


23 


301 


354  INDEX. 

SUBMISSION,  as  a  rhetorical  figure 292 

SUMMATION  of  speech  in  peroration 336 

SUSPENSION,  as  a  rhetorical  figure 295 

SYLLEPSIS       295 

SYLLOGISM,  form  of,  as  to  facts 140 

law 148 

SYNECDOCHE 294 

SYNONYMS 281 


TESTIMONY,  collation  of,  while  being  taken  in  court 347 

THINGS,  attributes  of,  classified  and  explained ici-113 

available  ideas  concerning 101-113 

THOUGHT,  figures  of 292 

TIME  OF  THINGS,  available  ideas  concerning 108 

TRAINING   OF   WITNESSES 178-189 

(See  Witnesses,  Training  of.) 

TRUTHFULNESS,  defined 176 

(See  Witnesses,  Lying.) 


UNITY   OF    SENTENCES 285 

UNIVERSAL   IDEAS    AND   IMPULSES  employed  in  oratory  .     .       11 
UNRELIABILITY   OF    WITNESSES,  causes  of 228 


VARIANCE  between  pleadings  and  evidence 103 

VIRTUE,  human  nature  tends  to 13 

tendency  toward  perfection  impels  to 13 

universal  ideas  of,  excite  universal  emotions 14 

VOICE,  in  oratory 351-356 

adaptation  of,  to  different  parts  of  oration 355 

acquisition  of  facility  in  use  of 356 

cultivation  of       351 

inflections  of 354 

management  of 352 

qualities  of 351 

VOLUME,  as  an  attribute  of  things 105 


WEIGHT,  as  an  attribute  of  things 105 

WILL  moved  by  emotions 2 

purpose  of  oratory  to  move 1 

WITNESSES,  apprehension  of,  defective 229-234 

are  associate  advocates 164 


index.  355 

WITNESSES — emHmntd. 

attack  on  character  of,  by  cross-examiner     .....     253 

bold  and  zealous,  management  of 195 

causes  of  unreliability 228 

contradiction  of 252 

credible,  attitude  of  cross-examiner  toward 227 

faults  of  expression  in 224 

incorrectness  of,  how  caused 224-227 

how  exposed  on  cross-examination     224-227 

mistake  of,  as  to  facts 226 

stating  inferences  as  facts       225 

cross-examination  of 214-257 

an  oratorical  act 215 

dangers  of        221 

limitations  of 215 

methods  of 223 

not  to  be  omitted 222 

purpose  of       214 

scope  of 223 

to  expose  incorrectness  of  credible  witness    .       224-227 
to  expose  unreliability  of  witness     ....       228-254 

defective  apprehension 229-234 

disordered  senses 229 

unfamiliarity  with  object 230 

want  of  attention 231-234 

causes       232,  233 

exposure  of 234 

defective  memory 235—237 

classes  of 235 

detection  of 236 

exposure  of 237 

defective  powers  of  expression  ....      238,  239 

detection  of 238 

exposure  of 239 

untruthfulness 240-254 

liars,  classes  of 240 

innocent  and  careless 241 

wilful 242-254 

attack  on  character 253 

contradiction  of 252 

impeachment  of 254 

mode  of  cross-examining      .     .       243-251 

to  expose  evil  motives        .     .       244-249 

self-contradictions        250,  251 

when  to  cross-examine 242 

to  use  the  witness  against  his  own  side      ....     255 


356  INDEX. 

WITNESSES  —  continued. 

defective  apprehension  of 229-234 

expressions  of 238,  239 

memories  of 235-237 

direct  examination  of 190-213 

bold  and  zealous  witness .     .     .     195 

dull  and  stupid  witness ,    193 

experts 191 

hostile  witness 196 

interference  of  cross-examiner  with        .     .     .       218-220 

rambling  witness 192 

timid  and  self-conscious  witness 194 

dull  and  stupid,  examination  of 193 

training  of 179-181 

duty  of  advocate  while   his  own  witnesses  are  under 

cross-examination 258,  259 

examination  of,  in  preparing  case       .......     128 

good,  conduct  of  advocate  toward 210 

effect  of 205 

introduction  of       207 

rare 177 

hostile,  direct  examination  of 196 

importance  of  selecting  and  training 167 

lying,  cross-examination  of 240-251 

multiplication  of •     .     207 

number  is  not  strength 167 

order  of  introducing     .  201-204 

poor,  conduct  of  advocate  toward       .     .     .     ,     .     .     .     211 

effect  of 206 

employment  of        206,  208,  211 

qualifications  of 168-177 

cautious  and  considerate  disposition 175 

clear  ideas  of  his  own  testimony 169 

even  temper    .     -     , 174 

familiarity  with  courts  and  proceedings      ....     172 

good  appearance  and  manner       171 

knowledge  of  the  issue  and  its  relation  to  his  testi- 
mony        170 

quick  wit  and  sound  judgment 173 

resemble  those  of  the  advocate 168 

truthfulness 176 

qualities  of,  affect  evidence 205 

rambling,  direct  examination  of 192 

re-cross-examination  of 263 

re-direct  examination  of 258-262 

field  and  limits  of 260 


index.  357 

WITNESSES,  re-direct  examination  of — continued. 

method  of       262 

not  to  be  omitted 261 

self-conscious,  direct  examination  of 194 

self-contradictions  of 250,251 

stupid,  direct  examination  of 193 

training  of 178-189 

advantages  of 188,  189 

difficult  and  tedious 187 

in  comprehension  of  the  case 179,  180 

familiarity  with  court-room 182 

manner  and  appearance 181 

to  be  cautious  and  considerate 185 

truthful 186 

to  control  his  temper 184 

endure  cross-examination 183 

treatment  of 210,  211,  264 

untruthful 240-254 

zealous,  direct  examination  of  ...     .         ....     195 

WORDS 272-282 

attractive       280-282 

acquisition  of 282 

comprehension  of 273 

correct 273-277 

acquisition  of       277 

tests  of 276 

equivocal 275 

extension  of 274 

figures  of       293-296 

intelligibility  of •...       272-279 

when  attained 278,  279 

sounds  of 279, 280 

synonymous       281 

WRITING,  as  a  means  of  acquiring  style 304 

WRITINGS  PRIVATE,  examination  of,  in  preparing  case   ....     131 
WRITTEN  ORATIONS 342 


THE 

STUDENTS'    SERIES 


ELEMENTARY    LAW    TREATISES 

BY    ABLE    "WRITERS, 

including  the  most  important  topics  of  law. 

The  volumes  of  the  Students'  Series  are  in  use  as  Text-Books 
in  leading  Law  Schools  throughout  the  United  States. 

In  planning  this  series  of  law  books  for  students ,  you  hare  rendered  a  very  great  ser- 
vice, not  only  to  the  students  themselves,  but  also  to  the  profession.  There  has  been  no 
greater  obstacle  to  all  efforts  for  a  higher  standard  of  legal  education  than  the  lack  of 
such  books.  —  Prof.  William  G.  Hammond,  Law  Department,  Iowa  State  University. 

If  these  unpretending  volumes,  so  full  of  instruction ,  are  estimated  at  their  true 
value,  their  sale  and  circulation  will  not  be  confined  to  the  legal  profession  alone. —  Hon. 
John  Crowell,  LL.D.,  President  of  Ohio  State  and  Union  Law  College. 

The  plan  needs  only  development  to  render  it  popular,  and  the  volumes  now  out  are 
a  worthy  execution  of  it.  .  .  .  Either  volume  would  serre  the  purposes  of  a  mature 
lawyer,  desiring  to  refresh  his  memory  of  the  general  principles  of  the  subject. — 
H.  Y.  Times. 

VOLUMES    READY. 

BIGELOW   ON   TORTS. 
BIGELOW   ON   EQUITY. 
HEARD   ON   CRIMINAL    PLEADING. 
HEARD   ON   CIVIL  PLEADING. 
COOLEY   ON   CONSTITUTIONAL   LAW. 
LANGDELL'S   SUMMARY   OF   CONTRACTS. 
CURTIS   ON   UNITED   STATES   COURTS. 
MAY   ON   CRIMINAL   LAW. 
STIMSON'S   LAW   GLOSSARY. 
ROBINSON'S   ELEMENTARY   LAW. 
EWELL'S   MEDICAL   JURISPRUDENCE. 
STEPHEN'S   DIGEST   OF   EVIDENCE. 
ROBINSON   ON   FORENSIC   ELOQUENCE. 
BIGELOW   ON   BILLS.  NOTES,  AND   CHECKS. 

IN    ACTIVE    PREPARATION. 
BRYANT   ON   CODE   PLEADING 
ABBOTT   ON   WILLS. 

PRICE  OF  EACH  VOLUME.  — Cloth,  S2.50  net;  Law  Sheep,  83.00  net. 
Postage  10  cents  per  volume  additional 


I.  BIGELOW   ON   TORTS. 

The  style  is  attractive,  the  definitions  concise  and  accurate,  and  the 
size  of  the  volume  so  moderate  as  to  he  equally  attractive  both  to  the 
practitioner  and  the  student.  —  From  Hon.  John  Crowell,  President  of  Ohio 
Stale  and  Union  Law  College,  Cleveland. 

AN  ELEMENTARY  TBEATISE  ON  THE  LAW  OF  TORTS  —  By  M  kl- 
ville  M.  Bigelow,  Ph.D..  author  of  "  A  Treatise  on  the  Law  of  Estoppel/* 
"A  Treatise  on  the  Law  of  Fraud,"  and  Editor  of  "  Leading  Cases  in  the 
I>aw  of  Torts,"  etc.  Fourth  edition,  revised  and  enlarged.  Cloth,  $2.50 
net;  law  sheep,  $3.00  net. 

Among  the  best  books  for  the  use  of  students,  this  popular  manual  de- 
servedly takes  a  high  rank.  It  is  in  use  in  law  schools  all  over  the  country: 
for  example,  in  Boston  University  ;  University  of  Michigan;  Northwestern 
University,  Chicago;  University  of  Texas;  Washington  and  Lee  University; 
also  in  Canada  at  the  Osgoode  Hall  Law  School,  Toronto ;  and  a  few  years 
since  was  adopted  as  a  text-book  in  the  famous  university  of  Cambridge, 
England.  Probably  no  other  students'  book  is  so  widely  used.  The  new  fourth 
edition  embraces  many  late  cases,  and  a  new  chapter  on  Malicious  Interference 
with  Contracts.  The  whole  book  has  been  carefully  revised,  and  many 
passages  rewritten. 

It  seems  to  me  admirably  adapted  to  the  purpose  for  which  it  is  written.  Mr.  Bigelow 
is  very  happy  in  his  statement  of  legal  principles,  and  nowhere  so  much  so,  I  tliink,  us 
iu  this  book.  —  Hon.  Thomas  M.  Cooley. 

I  have  looked  through  this  volume  with  particular  interest,  from  my  own  expe- 
rience in  teaching  the  same  topic  ;  and  I  have  no  hesitation  in  saying  that  it  is  much 
better  fitted  for  the  student  than  any  work  on  Torts  we  have  had  before.  —  Prof.  WOUam 
G.  Hammond. 

Mr.  Bigelow,  in  bis  clear  and  succinct  statement  of  the  duties  of  individuals  towanj 
each  other  as  members  of  society,  has  made  a  valuable  contribution  to  your  Law  Stu. 
dents'  Series.  —  Hon.  Morrison  R.  Watte,  Chief  Justice  of  the  I 'niter!  Statu. 

Its  methodical  arrangement  of  the  classes  of  Torts,  its  clear  style,  and  its  simple  man- 
ner of  treatment,  render  it  specially  useful  to  beginners  in  the  study  of  law.  —  Janus  B. 
Black,  Central  Law  School  of  Indiana. 

It  is  the  product  of  real  thought  and  diligent  labor  ;  and  the  thought  and  labor  have 
been  too  skilfully  applied  not  to  result  in  a  substantial  addition  to  legal  literature.  — 
Boston  Daily  Advertiser. 

II.  BIGELOW   ON   EQUITY. 

The  arrangement  and  treatment  of  the   subject  are  admirable.  — 

From  Samuel  D.  Davis,  Professor  of  Lair,  Richmond  Coflejpw,  1'ir/jinia. 

ELEMENTS  OF  EQUITY  FOR  THE  USE  OF  STUDENTS.  —  My  Mel- 
ville M.  Bigelow,  Author  of  "  Law  of  Estoppel,"  "  Law  of  Fraud,"  etc. 
12mo.    Cloth,  $2.50  net ;  law  sheep,  $3.00  net. 

A  clear  and  compact  treatise,  well  fitted  to  be  a  manual  of  a  student  of  law.  — 
Hon.  John  Bascom,  University  of  Wisconsin. 


I  have  examined  Bigelow  on  Fquity.  It  is  to  be  commended  for  its  clearness  and 
conciseness  of  statement.  I  regard  the  first  chapter  as  a  model.  The  doctrines  of  Tack- 
ing, Subrogatiou,  and  Marshalling,  found  in  Chapters  14,  19,  and  20,  are  more  easily 
comprehended  than  in  any  other  work  on  those  subjects  that  I  have  seen.  —  Hon  J.  H. 
Carpenter,  Dean  of  Law  Faculty,  Unirersity  of  Wisconsin. 

III.  HEARD    ON   CRIMINAL   PLEADING. 

It  deserves  an  important  position  among  the  text-books  in  every 
Law  School  in  the  country.  —  Fran)  Wiilvim  C.  Robinson,  Professor  of  Criminal 
Late,  etc.,   Yale  College. 

THE   PKINCIPLES   OF   CRIMINAL  PLEADING.  -  By   Franklin   Fiske 
Hkard.     12mo.     Cloth,  $2.50  net;  law  sheep,  §3.00  net. 
The  style  in  which  the  author  writes  is  admirably  adapted  to  the  object  to  be  accom- 
plished, —  it  is  clear  and  precise,  and  the  whole  matter  is  kept  within  the  bounds  of  a 
manual.  —  .V.   1".  Tribune. 

An  interesting  manual,  thoroughly  supported  by  legal  authorities. — Hon.  John 
Bascom,  University  of  Wisconsin- 

IV.  HEARD   ON   CIVIL   PLEADING. 

An  admirable  companion  volume  to  his  "  Principles  of  Criminal 
Pleading,"  —  full,  clear,  concise.  —  From-  Lemuel  Moss,  Indiana  University, 
Blooiiiington. 

THE  PRINCIPLES  OF  PLEADING  IN  CIVIL  ACTIONS.  —  By  Frank  i.in 
Fiskk  IIkaim),  Author  of  "The  Principles  of  Criminal  Pleading."  12m<>. 
Cloth,  $2.50  net;  law  sheep,  13.00  net. 

He  has  taken  the  leading  and  established  rules,  and  illustrated  them  by  ample  cita- 
tions from  ancient  and  modern  learning.  Whoever  shall  make  himself  thoroughly 
acquainted  with  those  rules  as  here  laid  out  and  enforced,  cannot  fail  of  being  a  good 
pleader. — Boston  Courier. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design  to  practise, 
he  will  find  it  equally  necessary  to  become  familiar  with  the  principles  of  common  law 
pleading.  Mr  Heard's  work  is  a  plain  and  clear  guide  to  these,  and  its  silence  in  regard 
to  many  of  the  formal  and  adventitious  technicalities  of  the  older  English  system  will 
commend  it  to  American  readers.  —  Hon.  Simeon  E.  Baldwin,  Lair  Department  of  Yale 
College. 

V.  COOLEY   ON   CONSTITUTIONAL    LAW. 

No  Lawyer  can   afford  to  be  without   it,  and  every  voter  ought  to 

have  it.  —  From    Hon.    J.    H.     Carpenter.    Dean    of    Law   Faculty,    Unirersity   of 
Wisconsin. 

THE  GENERAL  PRINCIPLES  OF  CONSTITUTIONAL  LAW  IN  THE 
UNITED  STATES  OF  AMERICA.  —  By  Thomas  M.  Cooley,  Author 
of  "  A  Treatise  on  Constitutional  Limitations."     Second  edition,  by  Alexis 

('.    Angell,    of   the   Detroit    Bar.       12mo.      Cloth,   ,«2.50   net;    law   sheep. 

$3.00  net. 

3 


The  new  edition  contains  large  additions.  In  its  preparation,  the  editor, 
while  aiming  to  keep  the  book  a  manual,  and  not  to  make  it  a  digest,  has  treated 
briefly  all  important  points  covered  by  the  eases  decided  up  to  a  very  recent 
date.  He  made  such  changes  in  the  text  and  notes  as  had  been  required  by 
the  many  important  decisions  upon  constitutional  law  rendered  in  the  last  ten 
years. 

A  masterly  exposition  of  the  Federal  Constitution  as  actually  interpreted  by  the 
courts.  .  .  .  This  book,  of  moderate  dimensions,  should  be  placed  in  every  student's 
hands.  —  Hon.  P.  Bliss,  Dean  of  Law  Department,  State  University  of  Missouri 

It  is  worthy  of  the  reputation  of  the  distinguished  author.  It  is  the  best  book  on  the 
subject  to  be  placed  in  the  hands  of  a  student,  and  is  a  convenient  book  of  reference  for 
any  one.  —  Prof.  Manning  F.  Force,  LL.D.,  Cincinnati  Line  School. 

It  ought  unquestionably  to  be  made  the  basis  of  a  course  of  instruction  in  all  our 
higher  schools  and  colleges.  — Hon.  John  F.  Dillon,  Professor  of  Columbia  Law  School, 
New  York. 

It  is  a  work  of  great  value,  not  only  for  students  in  institutions  of  learning,  but  as 
well  for  the  lawyer,  to  whom  it  supplies  at  once  a  Treatise  and  a  Digest  of  Constitutional 
Law.  —  Henry  Hitchcock,  Dean  of  the  St.  Louis  Law  School. 

Clearly  and  compactly  written,  and  the  general  arrangement  well  adapted  for  students' 
use.  —  Hon.  Simeon  E.  Baldwin,  Law  Department  of  Yale  Colleye. 

I  have  examined  it  with  great  care,  comparing  it  closely  with  the  old  edition,  and 
testing  it  in  various  points.  As  a  result,  it  gives  uie  pleasure  to  state  that  we  shall  use 
the  book  both  in  the  courses  in  constitutional  history  and  law  in  the  collegiate  depart- 
ment, and  in  one  of  the  classes  in  the  law  school.  The  work  of  the  editor  of  the  new 
edition,  Mr.  Angell,  has  been  done  with  the  exactness  and  care  which  an  intimate 
acquaintance  with  him,  as  a  classmate  at  the  University  of  Michigan,  led  me  to  expeofl  in 
whatever  he  undertook.  Judge  Cooley  is  fortunate  in  having  so  excellent  an  editor  for 
the  revision.  —  L,eller  from  George  W.  Knight,  Professor  of  International  and  Consti- 
tutional Law,  Ohio  State  University. 

Your  name  alone  as  its  author  is  a  sufficient  guarantee  of  its  high  character  and  gen- 
eral usefulness,  not  only  for  the  use  of  the  students  of  law  schools  and  other  institutions 
of  learning,  for  which  it  was  originally  prepared,  but  also  for  members  of  the  bar.  The 
matters  discussed  are  stated  so  concisely  and  clearly  as  to  be  of  great  benefit  for  ready 
reference.  The  edition  sent  me  seems  to  have  all  the  late  cases  cited  and  referred  to  : 
and  Mr.  Angell  seems  to  have  been  very  careful  and  successful  in  making  the  changes 
from  the  first  edition,  and  adding  additional  notes. — Hon.  Albert  11.  J/orton,  Chief- 
Jnstice  of  the  Supreme  Court  of  Kansas,  to  Judge  Cooley. 


VI.      LANGDELL'S      SUMMARY      OF      CON- 
TRACTS. 

No  man  competent  to  judge  can  read  a  page  of  it  without  at  once 
recognizing  the  hand  of  n  groat  master.  Every  line  Is  compact  of 
Ingenious  and  original  thought.  —  American  I.air  Review. 

A  SUMMARY  OF  THE  LAW  OF  CONTRACTS.  —  By  C.  C.  La.ngdell, 
Dane  Professor  of  Law  in  Harvard  University.  Second  edition.  12mo. 
Cloth,  $2.50  net;  law  sheep,  $3.00  net. 


VII.  CURTIS  ON  UNITED  STATES  COURTS. 

A  work  of  the  highest  standard  on  the  subject  treated.  —Boston  Post. 

CTJKTIS  ON  THE  UNITED  STATES  COTJBTS.  —  Jurisdiction.  Practice,  and 
Peculiar  Jurisprudence  of  the  Courts  of  the  United  States.  By  Benjamin 
R.  Curtis.  LL.D.  Edited  by  George  Ticknor  Curtis  and  Benjamin 
U.  Curtis.     l2mo.     Cloth,  £2.50  net ;  law  sheep,  S3. 00  net. 

These  lectures  were  delivered  by  the  late  Judge  Curtis  to  a  class  of  students 
in  the  Harvard  Law  School,  in  the  academic  year  1872-73. 

Cannot  fail  to  be  of  great  service  to  the  student  in  the  prosecution  of  his  legal  studies. 
Chicago  Legal  Sews. 

It  is  by  far  the  best  epitome  of  that  extensive  subject,  and  the  clearness  of  the  style 
and  orderly  arrangement  of  the  learned  author  will  especially  recommend  it  to  students. 
Hon.  Edmund  H  Bennett,  Dean  of  School  of  Law,  Boston  University. 

There  is  not  to-day  in  existence  so  admirable  a  treatise  on  United  States  courts  and 
their  jurisdiction  as  this  little  book.  —  Milwaukee  Republican. 

VIII.  MAY'S    CRIMINAL   LAW. 

I  have  carefully  examined  and  read  through  May's  Criminal  Law. 
This  work  is  certainly  one  of  distinguished  merit.  Its  definitions  and 
statements  of  principles  are  clear  and  concise.  Its  discussions  of  doubt- 
ful or  controverted  points  are  calm  and  scholarly.  The  cases  to  which 
it  refers  embrace  the  most  recent  English  and  American  decisions,  and 
therefore,  both  as  a  vadr  MMKM  for  the  criminal  lawyer  and  as  a  text- 
book for  the  student,  it  must  at  once  take  a  high  position  in  the 
literature  of  that  brancli  of  jurisprudence.  —  From  WillUim  C.  Robinson, 
Professor  of  Criminal  Law,  etc.,  Yale  College. 

THE  LAW  OF  CBIMES.  —  By  J.  Wilder  May,  Chief  Justice  of  the 
Municipal  Court  of  the  City  of  Boston.  Second  edition,  edited  by  Joseph 
Henry  Beale,  Jr.,  Assistant  Professor  of  Law  in  Harvard  University. 
12nio.     Cloth,  $2.50  net ;  law  sheep,  33.00  net. 

This  new  edition  of  Judge  May's  deservedly  popular  work  contains  large 
additions.  The  editor  states  in  the  preface  that  the  original  plan  included  no 
discussion  of  the  subjects  of  Criminal  Pleading  and  Practice,  but  it  was  found 
that  it  would  be  better  adapted  to  the  use  of  students  if  these  subjects  were 
briefly  considered,  and  this  has  accordingly  been  done.  Much  has  also  been 
added  to  the  first  chapter,  which  contains  the  general  principles  underlying  the 
criminal  law. 

It  is  to  be  especially  commended  for  its  clear  and  concise  definitions,  as  also  for  its 
citations  of  leading  cases  directly  upon  the  matter  under  discussion.  —  From  J.  H. 
Carpenter,  Dean  of  Lam  Faculty,  University  of  Wisconsin. 

It  is  uot  a  mere  synopsis,  but  au  interesting  discussion,  quite  full  enough  to  give 
the  student  a  true  view  of  the  subject,  and  minute  enough  to  be  a  useful  handbook  to 
the  practitioner  —  Xew  York  Laic  Journal. 


IX.     STIMSON'S   LAW   GLOSSARY. 

It  is  a  valuable  addition  to  the  Students'  Series,  and  I  shall  cordially 
recommend  it  as  a  first  dictionary  to  our  students.  —Hon.  Edmund  H. 
Bennett t  Dean  of  School  of  Law,  Boston  University. 

GLOSSAEY  OF  TECHNICAL  TEBMS,'  PHBASES,  AND  MAXIMS  OF 
THE  COMMON  LAW.  —  By  Frederic  Jescp  Stimson.  12mo.  Cloth. 
$2.50  net ;  law  sheep,  $3.00  net. 

A  concise  Law  Dictionary,  giving  in  common  English  an  explanation  of  the 
words  and  phrases,  English  as  well  as  Saxon,  Latin,  or  French,  which  are  of 
common  technical  use  in  the  law. 

Specimen  of  tlie  Definitions    in  Stimson's  Jaixv   (Glossary. 


Dower.  The  life  estate  which  the  widow 
has  in  her  husband's  lands  on  his  death  ; 
usually  one-third  part  of  any  lands  of 
which  he  was  seised  in  an  estate  of  in- 
heritance at  any  time  during  the  mar- 
riage, if  the  husband's  estate  in  such  lands 
was  such  that  the  common  issue  might 
have  inherited.    Dower  ad   ostium 


Dower  by  the  common  law,  a  thinl 
part  of  the  husband's  land.  Doner  by 
custom  :  varied  in  amount  according: 
to  local  usage  Dower  de  la  pluis 
belle,  fr.  (of  the  fairest  part):  where 
the  wife  was  endowed  of  socage  lands 
held  by  her  as  guardian-  "Writ  of 
dower  or  Writ  of  right  of  dower  : 


ecclesiae,  I.  (at  the  church  door)  was  an   old  real    action    lying  for  a  widow 


anciently  where  the  husband  specifically 
endowed  his  wife  with  certain  of  his  own 
lands ;  or  of  his  father's  lands,  Dower 
ex  assensu  patris.  If  this  was  not 
done,  she  was  assigned  her  Reason- 
able dower,  Dos  rationabilis,  /., 


against  a  tenant  who  had  deprived  her  of 
part  of  her  dower.  Dower  unde  nihil 
habet,  I.  ■"  a  similar  writ  which  lay  for 
a  widow  to  whom  no  dower  had  been 
assigned. 


The  information  crowded  by  Mr.  Stimson  in  his  duodecimo  volume  of  a  little  more 
than  three  hundred  pages,  is  very  great;  his  explanations  are  given  with  remarkable 
brevity,  and  legal  technicalities  are  avoided  so  completely  as  to  make  the  work  a  valu- 
able and  welcome  supplement  to  the  common  English  Dictionaries  — Boston  Daily 
Advertiser. 

X.     ROBINSON'S   ELEMENTARY   LAW. 

The  book  is  convenient  to  the  instructor  who  will  use  it  as  a  text  to 
be  amplified  in  his  lectures,  and  valuable  to  the  student  who  will  con- 
sult the  references.  — Prof.  3f.  F.  Force,  LL.D.,  Cincinnati  Lair  School. 

ELEMENTAEY  LAW.— By  William  C.  Robinson.  LL.D.,  Professor  of 
Elementary  Law  in  Yale  College.  12mo.  Cloth,  $2.50  ntt;  law  sheep, 
$3.00  net. 

It  contains  a  statement  of  the  principles,  rules,  and  definitions  of  American 
Common  Law,  both  civil  and  criminal,  arranged  in  logical  order,  with  refer- 
ences to  treatises  in  which  such  definitions,  rules,  and  principles  are  more 
extensively  discussed. 

This  volume  is  used  largely  in  law  schools,  and  the  author  has  a  special 
knowledge  of  the  requirements  of  the  student,  being  a  leading  instructor  at  the 

ti 


[.aw  School  of  Yale  College.     The  studen*  ..  !     -  • 

may  store  his  mind  with  lucid  and  concise  ...aicinents  of  the  leading  topics  of 
law;  and,  having  been  grounded  in  this  primary  information,  a  course  of  read- 
ing is  laid  down,  including  the  best  text-books  together  with  the  special  por- 
tions of  the  works  which  relate  to  the  subjects  in  question.  It  may  also  be 
used  with  great  benefit  as  a  review  book  for  examinations.  The  purpose  of 
this  most  useful  elementary  work  cannot  better  be  explained  than  by  here 
reprinting,  from  page  33,  Section  61,  relating  to  Transfer  of  Estates:  — 

Section  61.  Ok  the  Ownership  and  Transfer  of  Estates. 
An  estate  may  belong  to  one  person  or  to  several  persons  collectively.  It 
may  also  be  transmitted  from  one  person  to  another,  or  lesser  estates  may  be 
carved  out  of  it  by  the  owner  aud  be  granted  to  others.  The  relation  between 
co-owners  or  successive  owners  of  the  same  estate,  or  between  persons  one  of 
whom  derives  his  estate  from  the  other,  is  known  as  privity  of  estate. 
Read  2  Bl.  Comm.,  pp.  107, 179,  200,  201. 

1  Wash.  R.  P.,  B.  i,  Ch.  xiii,  Sec.  I,  §  1. 
■1  Wash.  U.  P.,  B.  ii,  Ch.  i.  Sec.  1,  §  16. 
1  Greenl.  Ev.,  §§  189,  523. 

The  principles  are  admirably  stated.  —  Albany  Laic  Journal. 

It  would  be  a  benefit  to  every  law  student  to  put  this  volume  into  his  hand,  and  make 
it  his  rude  iiiecum  throughout  the  whole  of  his  professional  studies.  —  Boston  Advertiser. 

It  might  worthily  be  adopted  as  a  text-book  for  every  senior  class  in  a  male  or  female 
college,  and  will  be  found  an  invaluable  accession  to  every  public  and  private  library.  — 
Sen:  York  World. 

XI.  EWELL'S  MEDICAL  JURISPRUDENCE. 

It  is  excellently  done.  I  wish  it  might  he  read  hy  every  student  of 
law  as  well  as  by  every  student  of  medicine.  —  Prof.  Henry  Wade  Rogers, 
Cniversily  of  Michigan. 

A  MANUAL  OF  MEDICAL  JURISPRUDENCE  FOR  THE  USE  OF 
STUDENTS  AT  LAW  AND  OF  MEDICINE.  -  By  Marshall  D.  Ewell, 
M.D.,  LL.D.,  of  the  Union  College  of  Law,  Chicago.  12mo.  Cloth,  S2.50 
net;  law  sheep,  $3.00  net. 

Mr.  Ewell  has  endeavored  to  produce  a  work  which,  within  a  moderate  com- 
atcs  all  the  leading  facts  and  principles  of  the  science  concisely  and  yet 
clearly.     In  it  will  be  found  the  substance  of  all  the  principles  stated  in  the 
more  voluminous  and  expensive  works. 

XII.  STEPHEN'S   DIG-EST  OF   EVIDENCE. 

Short  as  it  is,  I  believe  it  will  be  found  to  contain  practically  the 
whole  law  of  the  subject.  —  The  author. 

A  DIGEST  OF  THE  LAW  OF  EVIDENCE.  —  By  Sir  James  Fitzjasiks 
Stephen,  K.C.S.I.,  a  Judge  of  the  High  Court  of  Justice,  Queen's  Bench 
Division.     From  the  Fourth  English  Edition.     With  Notes  and  Additional 


Illustrations  to  the  Present  Time,  chiefly  from  American  Cases,  including 
those  of  John  Wildek  May,  late  Chief  Justice  of  the  Municipal  Court  of 
the  City  of  Boston,  author  of  "The  Law  of  Insurance,"  etc.  12mo.  251 
pages.     Cloth,  $2  50  net;  law  sheep,  $3.00  ntt. 

A  full  and  exact  reprint  of  the  Fourth  (latest)  English  Edition,  revised  by 
the  author,  with  references  to  American  cases.  Many  editions  of  the  work  have 
been  published  in  America,  but  the  present  will  be  found  to  be  the  most  useful, 
as  it  includes  the  very  valuable  notes  prepared  by  the  late  John  Wilder  May, 
author  of  "  The  Law  of  Crimes,"  etc.,  together  with  a  selection  of  cases  and 
references  supplementing  his  important  editorial  work. 

XIII.  ROBINSON'S    FORENSIC    ELO- 

QUENCE. 

This  is  a  book  which  no  student  of  law  can  aflbrd  to  pass  by  with- 
out a  thorough  study  of  it.  It  Is  also  a  work  which  no  practising 
lawyer  who  understands  the  trial  of  causes  and  is  not  already  an 
acknowledged  leader  in  the  courts,  can  afford  not  to  read  and  read 
again. — American  Law  Review. 

FORENSIC  ELOQUENCE,  A  MANUAL  FOE  ADVOCATES.  —  By  Wiu.iam 
C.  Robinson,  Professor  of  Elementary   Law  in  Yale   College,  author  of 
"The  Law  of    Patents  for  Useful    Inventions,*'    "Elementary   Law,"  etc. 
12rao.    Cloth,  $2.50  net;  law  sheep,  $3.00  net. 
A  new  and  suggestive  work  on  the  Duties  and  Functions  of  the  Advocate. 

XIV.  BIGELOW'S    BILLS,    NOTES,    AND 

CHECKS. 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  BILLS,  NOTES, 
AND  CHECKS  -By  Melville  M.  Bigelow,  Ph.D.,  author  of  "Aa 
Elementary  Treatise  on  the  Law  of  Torts,"  etc.  12mo.  Cloth,  §2.50  net; 
law  sheep,  $3.00  net. 

XV.  BRYANT    ON    CODE    PLEADING. 

PRINCIPLES  OF  CODE  PLEADING  FOR  THE  USE  OF  STUDENTS. 
By  Hon.  Edwin  E.  Bryant,  Dean  of  Law  Department  of  State  Univer- 
sity of  Wisconsin.  12mo.  Cloth,  $2.50  net;  law  sheep,  $3.00  net.  {In 
preparation.) 

XVI.  ABBOTT'S    LAW    OF    WILLS. 

ELEMENTS   OF    THE    LAW    OF    WILLS.— By   Nathan   Abbott,   Pro- 
r  of  Wills,  etc.,  at  Northwestern  University,  Chicago.     12mo.     Cloth, 
S2.50  net;  law  sheep,  $3.00  net. 


LITTLE,   BROWN,   &   CO.,   Publishers, 

254   Washington   Stout,    Boston. 
8 


A     000  673  558     3 


